JUDGMENT Dixit, C.J.1. The petitioner Vinod Kumar Verma in this case was holding in the former State of Vindhya Pradesh the post of District Welfare Organiser in Backward Classes Welfare Department at the time when that State became a part of the new State of Madhya Pradesh under the States Reorganisation Act, 1956 (hereinafter referred to as the Act). After the coming into force of the Act, he was allowed to continue in the post he held in Vindhya Pradesh until 24th August 1961 when an order was passed by the Director of Tribal Welfare, Madhya Pradesh, provisionally absorbing him against the post of Circle Organiser with effect from 1st November 1956 till further orders. The petitioner then filed a representation to the Government against the absorption order, which was rejected. In the provisional integration list of the Tribal Welfare Department, which was published subsequently, the petitioner's post of District Welfare Organiser in V. P. was equated with the post of Circle Organiser in the set-up of the Department in the new State. The petitioner then filed a representation against this equation of posts. In the return filed on behalf of opponents, it has been stated that this representation of the applicant praying that his post should have been equated with the post of District Welfare Organiser was rejected by the Central Government. On 18th July 1963 an order transferring the applicant as Circle Organiser, Shahdol, was passed.

2. By this application under Article 226 of the Constitution, the petitioner now prays that a writ of mandamus, be issued to the respondents to equate the post he held in the former Vindhya Pradesh State with that of District Welfare Organiser in the new set-up and it be declared that he is still holding the said post; that a direction be issued to the opponents prohibiting them from transferring him as Circle Organiser; and that the order of his transfer to Shahdol be quashed by the issue of a writ of certiorari. He also prays that writs of quo warranto be issued to all the District Welfare Organisers of the Tribal Welfare Department.

3. The petitioner's main contentions are that as immediately before the "appointed day" fixed by the Act he was holding the post of District Welfare Organiser in the former State of Vindhya Pradesh and as he was continued in that post in the new State by virtue of Section 116 of the Act, he could not be thereafter absorbed against the post of Circle Organiser; that in the integration of the Department, the post he held in the erstwhile State of Vindhya Pradesh should have been equated with the post of District Welfare Organiser in the new set-up; that the integration of the personnel in the Department made by the State was beyond its competence and in violation of Section 115 (5) of the Act; and that the principles on which the integration was to be done were never notified by the Central Government as required by Sections 115 (5) and 129 read together. The petitioner has also relied upon the Madhya Pradesh Unification of Pay-Scales and Fixation of Pay on Absorption Rules, 1959, to support his contention that he was entitled to hold the post of District Welfare Organiser even in the new set-up. The petitioner complains that his appointment as Circle Organiser amounts to reduction in rank which was invalid as having been done contrary to the provisions of Article 311(2) of the Constitution.

4. Having heard learned counsel for the petitioner and the learned Government Advocate, we have reached the conclusion that this application must be dismissed. By virtue of Section 115 (1) of the Act, the petitioner must no doubt be deemed to have been allotted to the new State of Madhya Pradesh when under the Act Vindhya Pradesh became a part of the new State. Under Section 116, he no doubt continued to hold in the new State the same post which he held in Vindhya Pradesh and was deemed to have been appointed to that post in the new State from the "appointed day". But this fictional appointment was only for the purpose of giving him the requisite competency and authority to discharge the duties and functions of the post in which he was continued in the new State. This continuance did not confer on him any right to be continued in that post in the new State or to prohibit the State from appointing him to another post or office. This is clear from the plain language of Section 116. Sub-section (2) of that section specifically provides that nothing in Sub-section (1) shall be deemed to prevent a competent authority after the "appointed day" from passing in relation to such person any order affecting his continuance in such post or office. The petitioner's contention, therefore, that inasmuch as he was continued in the post of District Welfare Organiser after the "appointed day", he could not be provisionally absorbed as Circle Organiser and appointed to that post, cannot be accepted in view of the clear provisions of Sub-section (2) of Section 116. The Madhya Pradesh Unification of Pay-Scales and Fixation of Pay on Absorption Rules, 1959, relied on by the petitioner, do not in any way, assist him in his contention that he could not be provisionally absorbed as Circle Organiser. The Rules only deal with the fixation of pay to which a person is entitled on being provisionally absorbed against a certain post. They do not at all deal with the question of the provisional absorption of the personnel in any department against certain posts and do not confer on them any right of being absorbed against certain specific posts.

5. To support his contention that it was beyond the power of the State Government to effect integration of personnel in the Tribal Welfare Department and the integration done was in contravention of Section 115 (5) of the Act, the applicant based himself solely on the averment in paragraph 11 of the petition that the State Government constituted two committees for integration purposes which laid down certain principles of integration and equation of posts, and on the decision of a Division Bench of this Court in P.K. Roy v. State of M. P., M.P. No. 371 of 1962 dated 29th April 1964 : (AIR 1964 Madh Pra 307). It is no doubt true that under Section 115 (5) the duty and responsibility of taking a final decision in regard to integration of services of State personnel has been cast on the Central Government and that function has to be discharged by the Central Government in the manner laid down by Sub-section (5). The Central Government cannot delegate this function of taking a decision to the State Government. In his petition, the applicant has not given any details or particulars of what the State Government and the Central Government did to indicate that in regard to the integration of the Tribal Welfare Department the Central Government abdicated completely its functions under Section 115 (5) in favour of the State Government. Merely saying that the State Government constituted two committees for purposes of 'integration' does not lead to the conclusion that the Central Government itself never laid down any principles for integration of services or that the principles which the two State-committees laid down never met the approval of the Central Government, and that the provisional or final integration list prepared in accordance with these principles did not embody the decision of the Central Government on the matter or that the Central Government never took any decision in regard to the integration of personnel of the Tribal Welfare Department. The petitioner has not even exhibited the provisional and final gradation lists. On the other hand, if, as stated in paragraph 5 of the return filed on behalf of the respondents, the petitioner's representation against the provisional gradation list was rejected by the Central Government and a final list of gazetted officers of the department has been published since then, that necessarily means that the Central Government has taken a final decision in the matter of integration of the personnel of the department.

It has also bean stated in the return that the applicant has again sent a representation to the Central Government and that is still being considered by the said Government. If that be so, then the petitioner has at present no cause to complain to this Court and can have none. if the representation is ultimately rejected. The decision of the competent authority about the equation of posts in integration is an administrative decision which cannot be interfered with by this Court in proceedings under Article 226 of the Constitution. It must be noted that on the petitioner's contention that it is not within the province of the State to do integration work and that the competent authority is the Central Government, the relief claimed by him of a writ of mandamus to the opponents directing them to equate the post of District Welfare Organiser, which the petitioner held in Vindhya Pradesh, to the post of District Organiser in the new set up is really paradoxical. If, as urged by the petitioner, the State Government has no power to take any step or decision in regard to integration matter, then clearly the State Government cannot be asked to do the equation of posts desired by him.

6. The decision in MP No. 371 of 1962 dated 29-4-1964: (AIR 1964 Madh Pra 307) (supra) is of no assistance to the applicant for the simple reason that it relates to the integration of the establishment of Buildings, Roads and Irrigation in the Public Works Department. In that case, the Division Bench quashed a notification of the General Administration (Integration) Department, Bhopal, publishing the final gradation list of the establishment of Buildings, Roads and Irrigation in the Public Works Department on the ground that it was not done by the Central Government and further directed the Union Government to complete the work of integration of services in the aforesaid department in accordance with Section 115(5) of the Act without delegating its essential functions to the State Government. If the integration of services in the establishment of Buildings, Roads and Irrigation in the Public Works Department was not effected by the Central Government in conformity with Section 115(5), it does not follow that it was not done in the Tribal Welfare Department also in accordance with Section 115(5). As stated earlier, the petitioner's application is utterly lacking in particulars and details in regard to what the State Government did and what the Central Government omitted to do in the matter of integration of personnel of the Tribal Welfare Department. In the absence pf those particulars, it is clearly impossible to determine whether what the petitioner thought the State Government did and the Central Government omitted to do and which he did not reveal in the petition, was or was not in conformity with Section 115(5), and it would be futile to consider which steps or matters in the integration of services are of ministerial character which could be undertaken or done by the State Government without infringing: Section 115(5) and Section 117, read together.

7. In this view of the matter, it is not necessary to consider the submission of the learned counsel for the applicant whether if under Section 115(5) of the Act the Central Government issues directions laying down certain principles and procedure for integration of services, those directions are rules made under Section 129 of the Act which have to be laid before both the Houses of Parliament. It may, however, be mentioned in the passing that Section 115(5) (b) does not prescribe that the "ensuring of fair and equitable treatment" to all persons affected by the provisions of Section 115 and the consideration of their representations should be in accordance with rules framed under the Act. The petitioner's further submission that his posting as a Circle Organiser amounts to reduction in rank so as to attract Article 311(2) is without any merit. The placing of the applicant in the integration has not resulted in his reduction in rank, and it is also not by way of punishment.

8. During the course of hearing, the petitioner submitted an application for joinder of the Union Government as respondent to the petition. On the petition as it is, in which no relief has been claimed against the Union Government, the prayer for joinder of the Union Government cannot be granted. The applicant was given an opportunity of withdrawing this petition and filing a fresh one, but he was not inclined to withdraw the petition.

9. For the foregoing reasons, our conclusion is that this petition must be, and is, dismissed with costs. Counsel's fee is fixed at Rs. 75. The outstanding amount of security deposit, if any after deduction of costs, shall be refunded to the petitioner.

"A million million spermatozoa All of them alive :Out of their cataclysm but one poor Noah Dare hope to survive.And among that billion minus one Might have chanced to be Shakespeare, another Newton, a new Donne But the one was me "So said Aldous Huxley, perhaps, in desperation and despondency. And, that is how a person would feel on being bastardized by a court verdict. disentitling him from inheriting the properties left by his father. This is the theme of the present judgement which we are required to write in view of the following facts :-

2. Parayankandiyil Kanhirakunnath Kurungodan Raman Nair was the proud father of 14 children from two wives, the first being Ammu Amma, who is the mother of the respondents 1 to 9, and the second being a lady of equally long name, namely, Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma (appellant No. l), who is the mother of appellants 2 to

6. He had a flair for two; two wives, two sets of children, two sets of properties, in two different States. P.K.K. Raman Nair died on 9th January, 1975, and since he left behind considerable movable and immovable properties in the States of Kerala and Tamil Nadu, litigation was the usual and destined calamity to befall the children for settling the question of inheritance.

3. The litigation started with the filing of O.S. No. 38 of 1976 and O.S. No. 39 of 1976 in the court of Subordinate Judge at Badagara, Kerala, by the respondents for a decree for possession over certain properties, which allegedly were in the possession of the appellants, and for half share by partition in the tenancy land held in common by late P.K.K. Raman Nair with his second wife, namely, appellant No.1. The appellants did not lag behind and they filed a suit (O.S. No. 99 of 1977) for partition of the properties of late P.K.K. Raman Nair, which were said to be in the possession of the respondents.

4. Respondents had instituted the suits on the basis of their title, with the allegations that the appellant Nos. 2 to 6 and their mother, namely, appellant No. 1, were not the legal heirs of Raman Nair, while the appellants had instituted their suit (O.S.No. 99 of 1977 ) for partition of the properties indicated in schedules A,B & C to the plaint, on the ground that they being the legal heirs of Raman Nair were entitled to a share in the properties left by him along with the respondents.

5. All the three suits were tried together by the trial court and were dismissed with the finding that the second marriage of Raman Nair with appellant No. 1 had taken place at a time when his first wife, Ammu Amma, was alive and, therefore, it was invalid, with the result that the appellant nos. 2 to 6, who were the children born of the second marriage would not inherit any share in properties left by Raman Nair.

6. Three appeals were consequently filed in the High Court and the only question urged before the High Court was that the second wife and children were also the legal heirs of Raman Nair, but the High Court by its impugned judgment and order dated 22.6.1989 dismissed the appeals with littled modification that the house in the plaint schedule property in O.S. No. 39 of 1976 was directed to be allotted. as far as possible. to appellant No. 1 as she was living in that house with her children. Hence these appeals.

7. Mr. P. S . Poti, Sr. Advocate. appearing on behalf of the appellants. has contended that the trial court as also the High Court were in error in dismissing the suit of the appellants for partition of their share in the properly as the appellants were the legal heirs of Raman Nair and the inheritance could not be denied to them merely on the ground of his second marriage with appellant No.1. particularly as Section 16 of the Hindu Marriage Act, 1955 specifically provides that, notwithstanding that a marriage is null and void, any child of such marriage, who would have been legitimate if the marriage had been valid, shall be legitimate and get an interest in the property of his parents, but not in the property of any other person.

8. The contention of the learned counsel for the respondents, on the contrary, is that benefit of Section 16 can be given only to such marriages as are null and void under Section 11 of the Hindu marriage Act. 1955 and not to any other marriage. His contention further is that a marriage would be null and void under Section ll only If it is performed after the coming into force of the Act and. therefore, all other marriages which were performed prior to the Hindu Marriage Act, 1955, would not be covered by Section 16 and children born of such marriage would not be entitled to the benefit of statutory legitimacy or inheritance.

9. It may be mentioned that one of the contentions raised before the High Court was that if the benefit of legitimacy contemplated by Section 16 of the Act is not extended to children born of the second or invalid marriages held prior to the Act, the provisions would have to be struck down as violative of Article 14 of the Constitution, inasmuch as they purport to create two classes of illegitimate children, namely. those born of the invalid marriages prior to the Act and those born of the void marriages performed after the enforcement of the Act. This was not accepted by the High Court which was of the opinion that the provisions of Section 16 were not violative of Article 14 of the Constitution.

10. Marriage, according to Hindu Law, is a holy union. It is not a contract but a Sanskara or sacrament.

11. The religious rites solemnizing a marriage include certain vows and prayers by the parties "In the three mantras of Laja (parched paddy) Hawan, the bride says :-

"I give oblation to the Fire God, the destroyer of enemies.

With the grace of the said destroyer of enemies, may I never be separated from my husband's house.

Other unmarried girls have worshipped the Fire God, the sustainer of the earth, for the fulfillment of their desire.

Knowing that their desire were fulfilled, I have also made an oblation, may the same Fire God, sustainer of the earth, be pleased and with his grace may I never be separated from my husband's house.

I worship Shankar in the form of Fire God, the god of good repute and the protector of husband. May by the grace of Shankar, the Fire God, I and my husband be freed from death as the ripe melon is freed from its knot in the creeper. With His grace may I never be separated from my husband's house.

May this oblation be acceptable to the Fire God. May sacred fire separate me from this (my father's) house but never from my husband's.

May my husband live long and my kinsmen be prosperous. May this oblation be acceptable to the Fire God.

I cast this parched paddy in fire. May it make you (the husband) and me prosperous. The boon be granted by agni."

Similarly, bridgroom, says to the bride:-

"O bride ! trace your first step, by this may our foodstuffs increase. May God let me keep your company till I live.

O bride ! trace your second step. by this may our strength grow, may God let me keep your company till I live.

O bride ! trace your third step, by this may our wealth increase. May God let me keep your company till I live.

O bride ! trace your sixth step. May we always get the fruits and flowers of the six seasons. May God let me keep your company till I live.

O bride ! trace your seventh step. By this may we live long and our relations be loving. may God let me Keep your company till I live."

12. The effect of these promises and prayers is that the marriage becomes indissoluble and each party becomes the complementary half of the other so that separation becomes unthinkable.

13. The terms prescribed by the Dharam Shastras, Secure to the wife a high and strong position. as is indicated, by the dialogue between the bride and the bridegroom during Saptapadi which again have been quoted in his book by Mr. K.P. Saksena on being supplied to him by Sahityacharya Shri Pandit Rameshwar Dwivedi. They are as under:-

"The bridegroom says:- "Madhupark has destroyed sins in the fire of Laja Hawan, so long as the girl does not sit on the left side she is unmarried. Madhupark have been performed first and oblation of parched paddy having been offered to the fire, so long as the girl does not sit on the left side she is unmarried. The bridegroom says to the bride:" Do not go without my permission, to a park to one who is drunk, to king's court and to your father's house.""The bride says "Perform along with me the Bajpeya, Ashwamedha and Rajsuya Yagas,tuladan and marriage.""With my consent and long with me consecrate Beoli,well and tank etc.,and God's temples and take bath during the months of Magh, Kartik, and Baisakh."Select a friend or enemy, a place worth a visit or not, go on pilgrimage, and perform a marriage and engage in framing and commerce after obtaining my consent and along with me.Render unto my hands what you earn by the grace of God whether it be hundred, a thousand, a hundred thousand, a thousand million, and ten billion.After obtaining may consent purchase, sell or exchange a cow, a bull or a buffalo, a goat, an elephant a horse or camel. My Lord, you should be my friend in the same way as Krishna is of Arjun, Brahaspati is of Indra and as Swati is of Chatak."14. Once "Saptapadi" is completed the marriage tie becomes unbreakable.

15. The legal position of a second marriage under the original Hindu Law is described in 'Principles of Hindu law' by Jogendra Chunder Ghose, 1903 Edition, as under:

"Polyagamy was not allowable according to the spirit of the law, but it was very generally practised, though the second wife could not be associated in religious sacrifices, and was styled a wife not for duty but for lust."16. Sir Gooroodas Banerjee in his book Hindu Law of Marriage and Stridhana, 4th Edition (re-Printed in India in 1984)" lays down as under :

"A Hindu husband is always permitted to marry again during the lifetime of his wife, though such marriage, if contracted without just cause, is strongly disapproved. "The first is the wife married from a sense of duty," and the others are regarded as married from sensual motives. "With sorrow," says Daksha feelingly, "does he eat who has two contentious wives; dissension, mutual enmity, meanness, and pain distract his mind; but his commentator, Jagannath, who lived at a time when kulinism and polygamy were widely prevalent, tries to soften the effect of the text, by showing that if the wives be complacent, none of the evil consequences would follow. The causes which justify supersession of the wife and re-marriage during her lifetime, are barrenness, ill- health, ill-temper, and misconduct of the wife.It should be observed that supersession (which is adhivedana in sanskrit) here means, as explained in the Mitakshara and the Subodhini, merely the contracting of a second marriage while the first wife lives; and it does not imply that the first wife is actually forsaken, or that her place is taken by the second, in respect of any matter except perhaps the husband's affection. It is true that Vijnaneswara in one place uses supersession and desertion as synonymous, but Sulpani, another high authority, uses the term in the sense given above, and Jagannatha appears to follow the latter. This view is further confirmed by the rules regarding precedence among wives, which is settled by law with a view to prevent disputes."17. Mr. K.P. Saksena, in his Commentary on Hindu Marriage Act. 1955, 3rd Edition (1964), writes as under "According to the Hindu Jurisprudence, a husband is always permitted to marry again during the lifetime of the first wife but such marriage, if contracted without just cause, is strongly disapproved. Manu has justified the supersession of the wife and remarriage during her lifetime on the following grounds, viz.(i) barrenness, (ii) ill-health, (iii) ill-temper and misconduct of the wife, vide, manu (IX, 80-81).

He further maintains that (1) the first wife is married from a sense of duty and (2) the others are regarded as married from sexual motives, vide, Manu (III, 12-13).

Supersession has been explained in Mitakshara andSubodhini as a contract of second marriage while the first wife is alive and not the desertion of the wife, for in desertion she is deprived of her rights such as association in performance of religious rites, religious duties, adoption, etc. In Ranjit Las V.

Bijoy Krishna, it has been held that adoption by a senior widow though lat in time is valid notwithstanding an earlier adoption by a junior widow without the consent of the senior widow whose adoption was declared to go invalid, though both wire authorized to adopt by the deceased. The Rishis do not approve of unrestricted polyagamy. They permit men to take a second wife in the lifetime of the first only under special circumstances. Thus Manu says; "A wife, who drinks any spurious liquors, who acts immorally, who shows hatred to her lord, who is incurably disease who is mischievous, who wastes his property, may at all times be superseded by another wife. A barren wife may be superseded by another in the 8th year; she who brings forth still born children or whose children all infants die in the tenth; she who brings forth only daughters, in the eleventh and she who speaks unkindly, without delay," It is, therefore, incorrect of suppose that the Hindu Law permits a man to espouse a second wife during the life of the first except under particular circumstances. Manu appears to present the perfect ideal of conjugal fidelity by requiring both the husband and the wife to be faithful to each other. thus in conclusion on the subject of mutual duties of husband and wife, the sage ordains: Let mutual fidelity continue till death: this, in few words, may be considered as the supreme law between husband and wife; let a man and a woman united by marriage, constantly beware, lest at any time being disunited they violate their mutual fidelity." (Manu IX, 101-102; V, 162-168). This passage clearly implies monogamy to be essential condition of the supreme law of conjugal duties. But it should be observed that the sages did not prohibit polygamy which was prevalent at the time by the tendency of their legislation was to discourage that practice by investing the first marriage with a religious character, and by permitting the marriage for religious purposes of a second wife in the lifetime of the first, only in certain contingencies when there was a failure of the object of marriage.

18. From the above, it would be seen that though polygamy was not permitted, a second marriage was allowed in a restricted sense, and that too, under stringent circumstances, as for example, when there was a total failure of the object of marriage. Monogamy was the Rule and Ethos of the Hindu society which derided a second marriage and rejected it altogether. The touch of religion in all marriages did not allow polygamy to become part of Hindu culture. This was the effort of community. Otherwise, this Court in Bhaurao V. State of Maharashtra AIR 1965 SC 1564 observed:-

"Apart from these considerations, there is nothing in the Hindu Law, as applicable to marriages till the enactment of the Hindu Marriage Act, 1955, which made a second marriage of a male Hindu, during the lifetime of his previous wife, void."

19. Therefore, if a second marriage did take place, children born of such marriage, provided it was not otherwise invalid, were not illegitimate and in the matter of inheritance, they had equal rights.

20. In every community, unfortunately, there are people who exploit even the smallest of liberties available under Law and it is at this stage that the law intervenes to discipline behaviour. Various states, therefore, passed their separate, though almost similar, laws relating to marriages by Hindus restricting the number of wives to only one by providing specifically that any marriage during the lifetime of the first wife would be void.

21. There is no dispute that Mr. Raman was a 'Nair' and belonged to Malabar Tarwad family. The personal law by which he was governed was the Marumakattayam Law of Malabar comprising of a body of judicially recognized customs and usages, which prevailed among a considerable section of the people inhabiting the West Coast of south India. The essential difference between Marumakattayam and other schools of Hindu Law was that the Marumakattayam school was founded on the matriarchate while others are founded upon the agnatic family. In the Mitakshara joint family the members claim through descent from a common ancestor, but in a Marumakattayam family, which is known as the Tarwad, the descent is from a common ancestress. Mr. Sundara Ayyar, who was a Judge of the Madras High Court, has already written an excellent treatise on the customary laws of Malabar which has been recognized as an authoritative word by the Privy Council in Kochunni Vs. Kuttanunni AIR 1948 PC 47. This Court had also had an occasion to refer to broad aspects of this law in a few decision (see : Balakrishna Menon vs. Asstt. Controller of Estate Duty AIR 1971 SC 2390; Venugopala Ravi Varma vs. Union of India AIR 1969 SC 1094; Achuttan Nair vs. C. Amma AIR 1966 SC 411). In A recent decision in Padmavathy Amma vs. Ammunni Panicket AIR 1995 SC 2154 = 1995 (Supp.) 3 SCC 352, it was indicated that:

"In the Marumakkathayam system of law succession to property is traced through females, though the expression Marumakkathayam strictly means inheritance by sister's children. It is because of this that a man's heirs are not his sons and daughters, but his sisters and their children the mother forming the stock of descent and inheritance being traced through mother to daughter, daughter's daughter and so on. A Marumakkathayam family is known as a Tarwad and consists of a group of persons, males and females, all tracing descent from a common ancestress. An ordinary Tarwad consists of the mother, her children, male and female, the children of such females and their descendants in the female line, how-low-soever, living under the control and direction of the Karnavan, who is the eldest male member. The junior male members are also proprietors and have equal rights. The Tarwad is thus a typical matriarchal family."22. Marumakattayam law was modified and altered by madras Marumukattayam Act, 1932 (XXII of 1933). This Act was on force when Raman Nair married his first wife, Ammu Amma, in 1938. Section 5 of the Act provides as under:

"5(1) During the continuance of a prior marriage which is valid under section 4, any marriage contracted by either of the parties thereto on of after the date, on which this Act comes into force shall be void. (2) On of after the said date, any marriage contracted by a male with a marumuakkattayi female, during the continuance of a prior marriage of such male, shall be void, notwithstanding that his personal law permits of polygamy.It thus contained a specific prohibition that during the continuance of a prior marriage, any marriage contracted by either of the parties thereto shall be void.

23. But Heart has its own reasons. In spite of the statutory prohibition, Raman Nair contracted a second marriage with respondent no.1 in 1948.

24. The Marumakkattayam Act, 1932 was repealed by Section 7(2) (read with the schedule) of the Kerala joint Hindu Family system (Abolition) Act, 1975 (Act 30 of 1976) with effect from 1.12.1976. Obviously with the repeal of the Act in 1976, the prohibition in Section 5 that the second marriage would be void, ceased to be operative.

25. Learned counsel for the appellant, therefore, contended that Madras Act XXII of 1933 which contained a prohibition against second marriage having been repealed by the Kerala joint Hindu Family system (Abolition) Act, 1975, the original Hindu law, based on Shastras and scriptures, would revive and consequently Raman's marriage with appellant No.1 would become valid particularly as the repeal would have the effect of obliterating the Madras Act XXII of 1933 from the statute Book from its inception as if it never existed. The contentions are without substance and deserve immediate rejection, on account of the reasons which we are setting out hereinbelow.

"7. Repeal--(1) save as otherwise expressly provided in this Act, any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall case to have effect with respect to any matter for which provision is made in this Act.(2) The Acts mentioned in the Schedule, in so far as they apply to the whole or any part of the state of Kerala, are hereby repealed."27. In the schedule appended to the Act, the Madras Act is mentioned at serial No. 1.

28. Section 4 of the Kerala Interpretation and General Clauses Act provides, inter alia, as under:

"4. Effect of repeal --Where any Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not--(a) revive anything not in force or existing at the time at which the repeal takes effect; or(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder, or(c) affect any right, privilege, obligation or liability acquired, privilege, obligation or liability acquired,accrued or incurred under any enactment so repealed; or(d).. ..(e).. ..29. In view of these provisions, it is necessary to examine Whether a different intention is expressed in the Kerala joint Hindu Family System (Abolition) Act, 1975 and what actually is the effect of repeal.

30. The provisions of Section 7(2), by which the Madras Act has been repealed, have been quoted above. The repealing Act does not indicate any intention contrary to the provisions contained in the Kerala Interpretation and General Clauses Act which, therefore, will apply with full vigor on the principle that whenever there is a repeal of any enactment, the consequences indicated in Section 4 would follow, unless there was any saving clause in the repealing enactment or any other intention was expressed therein. In the case of a simple repeal, there is hardly any room for the expression of a contrary view.

31. The instant case, as would appear from a perusal of Section 7(2) of the repealing enactment, is case of repeal simplicitor. In view of Section 4(b) of the Kerala interpretation and General Clauses Act, the previous operation of Madras Act XXII of 1933 will not be affected by the repeal nor will the repeal affect any thing duly done or suffered thereunder. So also, a liability incurred under that Act will remain unaffected and will not be obliterated by the repeal as indicated in clause (c) of Section 4.

32. Raman had contracted a second marriage, in the lifetime of his first wife, in 1948 when madras Act XXII OF 1933 was in force, which prohibited a second marriage and, therefore, the consequences indicated in the Act that such a marriage would be void would not be affected nor will the previous operation of the Act be affected nor will the previous operation of the Act be affected by the repeal of that Act. The repeal does not mean that Madras Act XXII of 1933 never existed on the statute Book nor will the repeal have the effect of validating Raman's second marriage, if it already a void marriage under that Act.

33. Learned counsel for the appellant then contended that appellant nos. 2 to 6 shall, for purposes of inheritance, be treated legitimate sons under Section 16 of the Hindu Marriage Act, 1956 and, therefore, their suit ought to have been decreed. He also contended that if benefit of legitimacy cannot be given to the appellants on the ground that Section 16 does not apply to them and applies to those illegitimate children who were born of a void marriage performed after the Act came into force, the provisions will have to be struck down as discriminator and violative of the rule of equality before law contained in Article 14 of the Constitution. We shall examine both the contentions.

34. Whenever an enactment is attacked on the ground of discrimination, it becomes the duty of the Court to look to the legislation as a whole and to find out why class legislation was introduced and what was the nexus between the classification and the object sought to be achieved by it. In order to decipher this question we have to have a peep into the background.

35. Before the enactment of the Hindu Marriage Act, 1955, there existed general Hindu Law, based upon scriptures and Shastras, including their exposition by scholars, which regulated marriages amongst Hindus. There were different customs and usages prevalent in different parts of the country.

36. In the Malabar area with which we are concerned in the instant case and which now forms part of the Kerala State, there were different customs regarding marriage prevalent among different groups of people. Local laws were also made regulating marriages among people in the Malabar area there was the Madras Marumakkattayam Act (No. XXII of 1933). Section 5 of this Act prohibited a second marriage during the lifetime of a spouse and specifically provided that such a marriage would be void. It laid down as under:

"5. (1) During the continuance of a prior marriage which is valid under section 4, any marriage contracted either or the parties thereto on or after the date on which this Act comes into force shall be void. (2) On or after the said date, any marriage contracted by a male with a marumakkattyi female, during the continuance of a prior marriage of such male, shall be void, notwithstanding that his personal law permits of polygamy.37. In the same area, there was the Madras Nomboodri Act (No.XXI of 1933) which was applicable to Namboodri Bragmans not governed by Marumakkattayam law of inheritance. This Act also prohibited bigamy but it was only partial prohibition as it was provided by Sections 11 and 12 of the Act as under:

"11. No Nombudri who has a Nambudri wife living shall marry another Nambudri woman except in the following cases:-(a) Where the wife is afflicted with an incurable disease for more than five years,(b) Where the wife has not borne him any child within ten years of her marriage,(c) where the wife has become an outcaste.""12. (1) Any Nambudri male who contracts a marriage in contravention of section 11 shall be punished with fine which may extend to one thousand rupees, but a marriage so contracted shall not be deemed to be invalid. (2) Any person who conducts, directs or abets the performance of any marriage in contravention of section 11 shall be punished with fine which may extend to one hundred rupees."38. Thus, a second marriage was permissible under certain circumstances enumerated in Section 11. It was also indicated that the second marriage would not void. Thus, in the same region, in respect of different groups of people, different laws were made, although both consisted of people professing Hindu religion. This anomaly was removed by repealing Sections 11 and 12 of the Act by Section 8 of the Madras Hindu (Bigamy prevention and Divorce) Act, 1949 (Madras Act VI of 1949) with the result that Section 9 of the namboodari Act, which provide as under:

"9. Notwithstanding any custom or usage to the contrary every major male Nambudri shall, subject to the provisions of section 5 of the Madras Marumakkattayam Act, 1932, and any other law for the time being in force, be at liberty to marry in his own community."became operative with full force and vigor. Since section 9 was to operate subject to the provisions of section 5 of the Tamil Nadu (Madras) Marumakkattayam Act, 1932, a Namboodari could not, after deletion of sections 11 and 12, marry a second wife during the lifetime of the first wife.

39. The evil of bigamy was sought to be prevented by regional laws made either prior to or after the Constitution of India. Since the attempt of these laws was to introduce social reforms in the community at regional levels, the High Courts, in which the validity of such laws was challenged, particularly after the enforcement of the Constitution. On the ground of violation Articles 14, 15 and 25, upheld those laws with the finding record in strong terms that the laws were neither discriminatory nor did they infringe Article 25 of the Constitution.

40. The Bombay High Court in state Vs. Narsu Appa Mali ILR (1951 ) Bocbay 775 = 55 Bombay Law Reporter 779= AIR 1952 Bombay 84, rejected the argument that the Bombay (Prevention of Hindu Bigamy Marriage) Act, 1946 discriminated between Hindus and Muslims by enforcing monogamies on Hindus and not on muslims as the Court was of the opinion that the state was free to embark upon social reforms in stages. It was pointed out by the Court that penalties provided in the Act, which were more stringent than those provide in the Indian Penal Code, were rightly prescribed and were justified on the ground that having regard to the outlook of the Hindus, it may have been considered necessary to impose severer penalties in order to implement the law effectively.

41. The Madras High Court in Srinivasa lyer Vs. Saraswathi Ammal ILR (1953) Madras 78 = AIR 1952 Madras 193, upheld the validity of the Madras Hindu (Bigamy prevention and Divorce) Act, 1949 and held that the Act did not violate Article 15 or 25 and there was no discrimination between Hindus and Mahammedans on the ground of religion.

42. The Full Bench of the Andhra Pradesh High Court in G. Sambireddy vs. G. Jayamma AIR 1972 A.P., considered both the Bombay and madras decisions referred to above and held that sections 11 and 17 of the Hindu Marriage Act, 1955 did not violate Article 15(1) as sections 5(1), 11 & 17 merely introduced a social reform for the class of persons to whom the Act applied.

43. Parliament consisting of the representatives of the people knew, and the Courts can legitimately presume that it knew, the situation prevailing all over India with regard to the different laws, customs and usages regulating marriages among Hindus and that it further knew their problems and their need for a uniform codified law concerning marriages.

44. It was in this background that Hindu Marriage Act, 1955 was enacted by Parliament to amend and codify the law relating to marriage among Hindus. The Act applies to every Person who is a Hindu by religion in any of its forms or developments, indicated in Section 2 thereof, including a person who is a Buddhist, Jain or Sikh by religion. Besides other categories of persons who are to be treated as "Hindus", the explanation appended to Section 2 provides that any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion, shall also be a Hindu. it also provides that any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain of Sikh and who is brought up as a member of the tribe, group, community or family to which such parent belongs, will be a Hindu.

45. Other relevant provisions of the Act also be noticed.

46. Section 4 of the Act provides that the Act shall have an overriding effect. It provides as under:

"4. Overriding effect of Act-- save as otherwise expressly provide in this Act:-(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act.(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act."47. Conditions for Hindu marriage are indicated in Section 5 which is quoted below:

"5. Conditions for a Hindu marriage--A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely----(i) neither party has a spouse living at the time of the marriage;(ii) at the time of the marriage, neither party--(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or(c) has been subject to recurrent attacks of insanity or epilepsy;(iii) the bridegroom has completed the age of (twenty one years) and the bride the age of (eighteen years) at the time of the marriage;(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two."(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two."48.Section 16, as originally enacted, provides as follows:

"16. Legitimacy of children of void and voidable marriages: Where a decree of nullity is granted in respect of any marriage under Section 11 or Section 12, any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child be deemed to be their legitimate child not with standing the decree of nullity:Provided that nothing contained in this section shall be construed as conferring upon any child of a marriage which is declared null and void or annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents."49. Sections 11 and 12 which are referred to in section 16 above are also quoted below:

"11. Void marriages---- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto (against the other party), be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5."

"12. Voidable marriages---(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:

(a) that the marriage has not been consummated owing to the impotence of the respondent;

or

(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child marriage Rastraint (Amendment) Act, 1978 (2 of 1978) the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage--

(a) on the ground specified in clause (c) of sub-section (1), shall be entertained if---

(i) the petition presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been descovered;

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied:

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground."

50. the requirements for the applicability of section 16 (as originally enacted), which protected legitimacy, were that:

(i) there was a marriage;(ii) the marriage was void under section 11 or voidable under section 12.(iii) there was a decree annulling such marriage either under Section 11 or under Section 12.(iv) the child was begotten or conceived before the decree was made.51. A marriage would be null and void if it was solemnized in contravention of clauses (i),(iv) and (v) of Section 5. clause (i) prohibits a marriage if either party has a spouse living at the time af marriage. Clause (iv) prohibits a marriage if the parties are not within the degrees of prohibited relationship while clause (v) prohibits a marriage between parties who are the 'sapindas' of each other. A marriage it any of the above situations was liable to be declared null and void by a decree of nullity at the instance of either party to the marriage. Section 16 was intended to intervene at that stage to protect the legitimacy of children by providing that children begotten of conceived before the making of the decree would be treated to be legitimate and they would inherit the properties of their parents,though not of other relations.

52. Similarly, a marriage solemnized either before or after the commencement of the Hindu Marriage Act, 1955 was made statutorily voidable if it was found that the husband was impotent at the time of marriage and continued to be so till the institution of the proceedings or that a party to marriage was either idiot or a lunatic or that the consent of the party to the marriage or that the of the guardian required under section 5 of the Act, was obtained by force or fraud ori that the girl at the time of marriage was pregnant by some other person. In such a situation, the marriage was label to be annulled by a decree of nullity at the instance of either party to the marriage. The legitimacy of children of such a marriage was also protected by Section 16 by providing that for purposes of inheritance, the children would be treated to be legitimate and would inherit the properties of their parents.

"Legitimacy is a status : it is the condition of belonging to a class in society the members of which are regarded as having been begotten in lawful matrimony by the men whom the law regards as their fathers. Motherhood, although also a legal relationship, is based on a fact, being proved demonstrably by parturition. Fatherhood, by contract, is a presumption. A woman can have sexual intercourse with a number of men any of whom may be the father of her child; though it is true that modern serology can sometimes enable the presumption to be rebutted as regards some of these men. The status of legitimacy gives the child certain rights both against the man whom the law regards as his father and generally in society."54. In an Australian case, Barwick, CJ in Salemi vs. Minister for Immigration and Ethnic Affairs (1977) 14 ALR 1(7). stated:

"I cannot attribute any other meaning in the language of a lawyer to the word "legitimate" than a meaning which expresses the concept of entitlement or recognition by law."55. Illegitimate children, on the contrary, are children as are not born either in lawful wedlock, or within a competent time after its determination. It is on account of marriage, valid or void, that children are classified as legitimate or illegitimate. That is to say, the social status of children is determined by the act of their parents. If they have entered into a valid marriage, the children are legitimate; but if the parents commit a folly, as a result of which a child is conceived, such child who comes into existence as an innocent human baby is labelled as illegitimate. Realising this situation, our parliament, and we must appreciate the wisdom of the legislators then adorning the seats in the august hall, made a law which protected the legitimacy of such innocent children. This was a bold, courageous and dynamic legislation which was adopted by other advanced countries.

56. The concept of illegitimacy was abolished in New Zealand by the status of Children Act 1969 (NZ). Under s.3 of this Act, for all purposes of the law of New Zealand, the relationship between every person and his father and mother is to be determined irrespective of whether the father and mother are or have been married to each other, and all other relationships are to be determined accordingly.

57. In England also, social reforms were introduced to supplement or improve upon the Matrimonial Clauses Act by enacting Family Law Reform Act, 1969 as also the Family Law Reform Act, 1987 to give limited right of succession to the illegitimate children in the property of their parents or allowing the parents to succeed to the property of their illegitimate children.

58. In spite of the foresightedness of the legislators, the intention of the parliament could not be fully reflected in the Act which unfortunately suffered at the hands of persons who drafted the Bill and the various provisions contained therein. The results were startling. Since the Rule of Legitimacy was made dependant upon the marriage (void or voidable) being annulled by a decree of annulment, the children born of such marriage, would continue to be illegitimate if the decree of annulment was not passed, which, incidentally, would always be the case, if the parties did not approach the Court. The other result was that the illegitimate children came to be divided in two groups; those born of marriage held prior to the Act and those born of marriage after the Act. There was no distinction between these two groups of illegitimate children, but they came to suffer hostile legislative discrimination on account of the language employed therein. Indeed, language is an imperfect instrument for the expression of human thought.

59. The object of Section 16 was to protect legitimacy of children born of void of voidable marriages. In leaving out one group of illegitimate children from being as legitimate, there did not appear to be any nexts between the object sought to be achieved by Section is and the classification made in respect of illegitimate children similarly situate or circumstanced. The provisions of Section 16 were, therefore, to that extent, clearly violative of Article 14 of the Constitution.

60. The legislature, as a matter of fact, committed the mistake of borrowing in this Section the language of Section 9 of the Matrimonial Clauses Act, 1850 made by the British parliament which dealt with the legitimacy of children of only voidable marriages did not the children of marriage void ipso jure.

61. The defect in the language employed in Section 16 was noticed by some High Courts also. The Madras high Court in T. Ramayammal vs. T.Mathummal AIR 1974 (Madras) 321, which was a decision rendered prior to the amendment of section 16, laid down that unless a decree of nullity was granted in respect of a marriage which was void, the legitimacy of the children born of such carriage would not be protected. The High Court further observed as under:

"The wording of Section 16 so far as it is relevant to a marriage void under Section 11 leads to an anomalous and startling position which could have hardly been contemplated by the legislature. The position and status of children of void marriage should obviously be the same either the marriage is declared a nullity under Section 11 or otherwise. It is seen that the legislature has borrowed in this section the language of section 9 of the Matrimonial Causes Act, 1950 which deals with the legitimacy of children of only voidable marriages and does not refer to children of marriages void ipso jure and made the section applicable to cases of both voidable and void marriages annulled by a decree of court. Though the language of the section is more appropriate to voidable marriages, it has been applied to void marriages as well, presumably with the object of ensuring that where a marriage was in fact solemnized but was void for any of the grounds mentioned in section 11, the children of such marriage should not be bastardized whether a decree of nullity is passed or not. But the above obvious intention of the Legislature has not been duly carried out by a proper wording of the section."62. The High Court was of the opinion that:

"In view of the language of the section being plain and unambiguous, it is not possible for the court to construe the same in a different manner having in mind the presumed intention of the legislature even if it appears to be obvious. I am therefore, of the view that this is a casus omissions which the Courts cannot reach for no canon of construction will permit the court to supply what is clearly a lacuna in the statute and it is for the legislature to set right the matter by a suitable amendment of the section."63. It may also be pointed out at this stage that the Joint Committee which was constituted to look into the provisions of the Hindu Marriage Act, indicated in its Report that in no case should children be regarded as illegitimate and consequently it followed the principles contained in Section 26 of the special Marriage Act, 1954, to provide that children born of void or voidable marriages shall be treated to be legitimate unlike the English law which holds the child of a voidable marriage alone to be legitimate but not that of a void marriage (see: Section 9 of the Matrimonial Clauses Act, 1850).

64. In order, therefore, to give full effect to what was intended to be achieved by enacting Section 16 by Act No. LXVIII of 1976 pointing out in the Notes to the Clauses of the Bill and the Amending Act, 1976 that:

"this clause seeks to substitute Section 16 so as to clarify the intention and to remove the difficulties in interpretation."65. The Amended Section 16 is quoted below"

"16. Legitimacy of children of void and voidable marriages.-(1) Notwithstanding that a marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. (2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to their legitimate child notwithstanding the decree of nullity.(3) Nothing contained in sub- section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents."66. The question now to be considered is the question relating to the 'vires' of the Section its present from, or, to put it differently, if Section 16, as originally enacted, contravened, any way, Article 14, for the reason that it discriminated between two groups of illegitimate children similarly circumstanced, does the Section, after its amendment by Act No. LXVIII of 1976 continue to be still violative of Article 14.

67. There is always a presumption that an Act made by the parliament or the state Legislature is valid; so also there is a strong presumption in favour of the validity of legislative classification. It is for those who challenge the Act as constitutional to show and prove beyond all doubts that the legislature arbitrarily discriminated between different persons similarly circumstanced. this presumption, however, can be displaced by showing that the discrimination was so apparent and manifest that any proof was hardly required. Section 16, as originally enacted, fell under this category and we have already geld that to the extent it discriminated between two groups of illegitimate children in the matter of conferment of status of legitimacy, it was violative of Article 14. The vice or the mischief from which unamended Section 16 suffered has been removed or not is our next concern.

68. Hindu Marriage Act, 1955 is a beneficent legislation and, therefore, it has to be interpreted in such a manner as advances the object of the legislation. The Act intends to bring about social reforms. conferment of social status of legitimacy on a group of innocent children, who are otherwise treated as bastards, is the prime object of Section 16.

69. Learned counsel for the appellant tried, at this stage, to invoke Heydon's Rule which is a sound rule of construction of a statute firmly established in England as far back as in 1584 when Heydon's case (1584) 3 Co Rep. 7a was decided that for the true interpretation of all statutes in general, four things are to be discerned and considered:

(1) What was the common law before the making of the Act, (2) What was the mischief and defect for which the common law did not provide, (3) What remedy the parliament hath resolved and appointed to cure the disease of the commonwealth, and (4) the true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy....70. Heydon's rule was approved in In re Mayfair Property Company (1898) 2 Ch 28 (CA), Wherein Lindly, M.R observed that the rule was "as necessary now as it was when Lord Coke reported Heydon's case". This rule was also followed by the Earl of Halsbury in Eastman Photographic Material Company Ltd. vs. Comptroller General of Patents, Designs and Trade- Marks (1898) AC 571, 576 (HL) in the following words:-

"My Lords, it appears to me that to construe the statute now in question, it is not only legitimate but highly convenient to refer both to the former Act and to the ascertained evils to which the format Act had given rise, and to the latter Act which provided the remedy. These thee things being compared, I cannot doubt the conclusion.71. Heydon's case has also been followed by this Court in a number of decisions, all of which need not be specified here except K.P. Verghese vs. Income-tax Officer, Ernakulam and Anr. 131 ITR 597 = 1982 (1) SCR 629 = 1981(4) SCC 173; Bengal Immunity Co. Ltd. vs. state of Bihar AIR 1955 SC 661 and m/s Goodyear India Ltd. vs state of Haryana AIR 1990 SC

781. Heydon's Rule is generally invoked where the words in the statute are ambiguous and /or are capable of two meanings. In such a situation, the meaning which avoids the mischief and advances the remedy, specially in the case of a beneficial statute, is adopted. There is some controversy whether Heydon's rule can be invoked in any other situation specially where the words of the statute are clear and unambiguous. In C.I.T., M.P.& Bhopal vs. Sodra Devi AIR 1957 SC 832, it was indicated that the rule in Heydon's case is applicable only when the words in question are ambiguous and capable of more than one meaning. That is what was expressed by Gajendragadkar, J. in Kanailal Sur vs. Paramnidhi Sadhukhan AIR 1957 SC 907. In Maunsell vs. olins (1975) 1 All ER 16 (HL) P-29, Lord Simon explained this aspect by saying that the rule in Heydon's case is available at two stages; first before ascertaining the plain and primary meaning of the statute and secondly at the stage when the court reaches the conclusion that there is no such plain meaning.

Be that as it may, we are not invoking the Rule but we have nevertheless to keep in mind the principles contained therein to examine and find out whether the mischief from which the earlier legislation suffered on account of use of certain words has since been removed and whether the subsequent legislation is constitutionally valid and, on account of use of new phraseology, implements effectively the intention of the legislature in conferring the status of legitimacy on children, who were, otherwise, illegitimate.

72. Keeping these principles in view, let us now proceed to examine the amended provisions of Section 16.

73. Section 16 was earlier linked with Sections 11 and 12. On account of the language employed in unamended Section 16 and its linkage with Sections 11 and 12, the provisions had the effect of dividing and classifying the illegitimate children into two groups without there being any nexus in the statutory provisions and the object sought to be achieved thereby. It is to be seen whether this mischief has been removed.

74. Section 16(1) begins with a non obstante clause.

75. "Non Obstante clause is sometimes appended to a Section in the beginning, with a view to give the enacting part of the Section, in case of conflict, an over-riding effect over the provision or Act mentioned in that clause. It is equivalent to saying that in spite of the provision or Act mentioned in the non obstante clause, the enactment following it, will have its full operation of that the provision indicated in the non obstante clause will not be an impediment for the operation of the enactment." (See: Union of India vs. G. M. Kokil (1984) (Supp.) SCC 196 = AIR 1984 SC 1022; Chandavarkar Sita Ratna Rao vs. Ashalata S. Gurnam (1986) (4) SCC 447(477) R.S Raghunath vs. state of Karnataka (1992) 1 SCC 335; G.P. Singh's Principles of statutory Interpretation).

76. The words "notwithstanding that a marriage is null and void under section 11" employed in Section 16(1) indicate undoubtedly the following :-

(a) Section 16 (1) stands delinked from Section 11.(b) Provisions of Section 16(1) which intend to confer legitimacy on children born of void marriages will operate with full vigor in spite of Section 11 which nullifies only those marriages which are held after the enforcement of the Act and in the performance of which Section 5 is contravened.(c) Benefit of legitimacy has been conferred upon the children born either before or after the date on which Section 16(1) was amended.(d) Mischief or the vice which was the basis of unconstitutionality of unamended section 16 has been effectively removed by amendment.(e) Section 16(1) now stands on its own strength and operates independently of other Sections with the result that it is constitutionally valid as it does not discriminate between illegitimate children similarly circumstanced and classifies them as one group for conferment of legitimacy.Section 16, in its present from is. therefore, not ultra vires the Constitution.

77. Section 16 contains a legal fiction. It is by a rule of fictio juries that the legislature has provided that children, though illegitimate, shall, nevertheless, be treated as legitimate notwithstanding that the marriage was void or voidable

78. When an Act of parliament or a state Legislature provides that something shall be deemed to exist or some status shall be deemed to have been acquired, which would not have been so acquired or in existence but for the enactment, the Court is bound to ascertain the purpose for which the fiction was created and the parties between whom the fiction was to operate, so that full effect may be given to the intention of the legislature and the purpose may be carried to its logical conclusion. (See: M/s JK Cotton Spg. & Wvg. Mills Lte. vs. Union of India AIR 1988 SC 191; American Home Products Corporation vs. Mac Laboratories (1986) 1 SCC 456= air 1986 SC 137).

Lord Asquith in Bast End Dwellings Co. LTD. V. Finsbury Borough Council, (1952) AC 109 B: (1951) 2 All ER 587 observed that when one is bidden to treat an imaginary state of affairs as real, he must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which inevitably have flowed from it-- one must not permit his imagination to boggle' when it come to the inevitable corollaries of that state of affairs. (See also : M. Venugopal vs. Divisional Manager, LIC (1994) 2 SCC 323.

79. In view of the legal fiction contained in Section 16, the illegitimate Children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.

80. Obviously, appellants 2 to 6 were born prior to the date on which amendments were introduced in Section 16(1), and consequently they would, notwithstanding that the marriage between their parents had taken place at a time when there was a legislation prohibition on the second marriage, be treated as legitimate, and would, therefore, inherit the properties of their father, Raman Nair, under Section 16(3) of the Act.

81. In the result, all the three appeals are allowed. Respondents' suit No. 38 of 1976 for exclusive possession of certain items of property is dismissed. The other suit, namely, O.S. No 39 of 1976 for partition of half share in the tenancy land, filed by the respondents against appellant No. 1 alone, is also dismissed. It will, however, be open to them to seek such relief as may be available to them under law. O.S. No 99 of 1977 filed by the appellants is decreed with the finding that the appellant no.1 being widow and appellant no. 2 to 6 being sons of Raman nair, are entitled to their share in the properties left by him. It is on this basis that the trial court shall now proceed to complete the proceedings in this suit for partition. Appellants shall be entitled to their costs.

The question raised in this case was whether the children of void/voidable marriages have a right to only the self-acquired property of their parents? Since, there is no attempt to marry, theoretically it is often argued that live in relationships should not be granted any form of legitimacy in the eyes of law and the children born out of such sexual unions cannot be provided with any inheritance rights. However, in such a situation the Courts have exercised the authority vested in them and interpreted the statutes in a broader manner to ensure that the children do not suffer as a result of the wrongs of their parents and consequently face problems in their economic as well as social life. Apart from the presumption of marriage in case of existence of such relations for a reasonable period of time, the Court have adopted a liberal approach towards the inheritance rights of children specifically.

J U D G M E N TGANGULY, J.

1. Leave granted.

2. The first defendant had two wives- the third plaintiff (the first wife) and the fourth defendant (the second wife). The first defendant had two children from the first wife, the third plaintiff, namely, the first and second plaintiffs; and another two children from his second wife, the fourth defendant namely, the second and third defendant.

3. The plaintiffs (first wife and her two children) had filed a suit for partition and separate possession against the defendants for their 1/4th share each with respect to ancestral property which had been given to the first defendant by way of grant. The plaintiffs contended that the first defendant had married the fourth defendant while his first marriage was subsisting and, therefore, the children born in the said second marriage would not be entitled to any share in the ancestral property of the first defendant as they were not coparceners.

4. However, the defendants contended that the properties were not ancestral properties at all but were self-acquired properties, except for one property which was ancestral. Further, the first defendant also contended that it was the fourth defendant who was his legally wedded wife, and not the third plaintiff and that the plaintiffs had no right to claim partition. Further, the first defendant also alleged that an oral partition had already taken place earlier.

5. The Trial Court, by its judgment and order dated 28.7.2005, held that the first defendant had not been able to prove oral partition nor that he had divorced the third plaintiff. The second marriage of the first defendant with the fourth defendant was found to be void, as it had been conducted while his first marriage was still legally subsisting. Thus, the Trial Court held that the third plaintiff was the legally wedded wife of the first defendant and thus was entitled to claim partition. Further, the properties were not self-

acquired but ancestral properties and, therefore, the plaintiffs were entitled to claim partition of the suit properties. The plaintiffs and the first defendant were held entitled to 1/4th share each in all the suit properties.

6. Aggrieved, the defendants filed an appeal against the judgment of the Trial Court. The First Appellate Court, vide order dated 23.11.2005, re-

appreciated the entire evidence on record and affirmed the findings of the Trial Court that the suit properties were ancestral properties and that the third plaintiff was the legally wedded wife of the first defendant, whose marriage with the fourth defendant was void and thus children from such marriage were illegitimate. However, the Appellate Court reversed the findings of the Trial Court that illegitimate children had no right to a share in the coparcenary property by relying on a judgment of the Division Bench of the Karnataka High Court in Smt. Sarojamma & Ors. v. Smt. Neelamma & Ors., [ILR 2005 Kar 3293].

7. The Appellate Court held that children born from a void marriage were to be treated at par with coparceners and they were also entitled to the joint family properties of the first defendant.

Accordingly, the Appellate Court held that the plaintiffs, along with the first, second and third defendants were entitled to equal share of 1/6th each in the ancestral properties.

8. The plaintiffs, being aggrieved by the said judgment of the Appellate Court, preferred a second appeal before the High Court of Karnataka. The substantial questions of law before the High Court were:

"a) Whether the illegitimate children born out of void marriage are regarded as coparceners by virtue of the amendment to the Hindu Marriage Act, 1956? b) At a partition between the coparceners whether they are entitled to a share in the said properties?"9. The High Court stated that the said questions were no more res integra and had been considered in the judgment of Sri Kenchegowda v. K.B. Krishnappa & Ors., [ILR 2008 Kar 3453]. It observed that both the lower courts had concurrently concluded that the fourth defendant was the second wife of the first defendant. Therefore, the second and third defendants were illegitimate children from a void marriage. Section 16(3) of the Hindu Marriage Act makes it clear that illegitimate children only had the right to the property of their parents and no one else. As the first and second plaintiffs were the legitimate children of the first defendant they constituted a coparcenary and were entitled to the suit properties, which were coparcenary properties.

They also had a right to claim partition against the other coparcener and thus their suit for partition against the first defendant was maintainable. However, the second and third defendants were not entitled to a share of the coparcenary property by birth but were only entitled to the separate property of their father, the first defendant. The High Court observed that upon partition, when the first defendant got his share on partition, then the second and third defendants would be entitled to such share on his dying intestate, but during his lifetime they would have no right to the said property. Hence, the High Court allowed the appeal and held that the first plaintiff, second plaintiff and the first defendant would be entitled to 1/3rd share each in the suit properties. The claim of the third plaintiff and the second, third and fourth defendants in the suit property was rejected.

10. As a result, the second and third defendants (present appellants) filed the present appeal.

11. The question which crops up in the facts of this case is whether illegitimate children are entitled to a share in the coparcenary property or whether their share is limited only to the self-

acquired property of their parents under Section 16(3) of the Hindu Marriage Act?

12. Section 16(3) of the Hindu Marriage Act, 1955 reads as follows:

"16. Legitimacy of children of void and voidable marriages- (1) xxx

(2) xxx

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.13. Thus, the abovementioned section makes it very clear that a child of a void or voidable marriage can only claim rights to the property of his parents, and no one else. However, we find it interesting to note that the legislature has advisedly used the word "property" and has not qualified it with either self-acquired property or ancestral property. It has been kept broad and general.

14. Prior to enactment of Section 16(3) of the Act, the question whether child of a void or voidable marriage is entitled to self-acquired property or ancestral property of his parents was discussed in a catena of cases. The property rights of illegitimate children to their father's property were recognized in the cases of Sudras to some extent.

T.B.K. Visvanathaswami Naicker (deceased) & Ors., [AIR 1923 PC 8], the Privy Council held when a Sudra had died leaving behind an illegitimate son, a daughter, his wife and certain collateral agnates, both the illegitimate son and his wife would be entitled to an equal share in his property. The illegitimate son would be entitled to one-half of what he would be entitled had he been a legitimate issue. An illegitimate child of a Sudra born from a slave or a permanently kept concubine is entitled to share in his father's property, along with the legitimate children.

16. In P.M.A.M. Vellaiyappa Chetty & Ors. v.

Natarajan & Anr., [AIR 1931 PC 294], it was held that the illegitimate son of a Sudra from a permanent concubine has the status of a son and a member of the family and share of inheritance given to him is not merely in lieu of maintenance, but as a recognition of his status as a son; that where the father had left no separate property and no legitimate son, but was joint with his collaterals, the illegitimate son was not entitled to demand a partition of the joint family property, but was entitled to maintenance out of that property. Sir Dinshaw Mulla, speaking for the Bench, observed that though such illegitimate son was a member of the family, yet he had limited rights compared to a son born in a wedlock, and he had no right by birth. During the lifetime of the father, he could take only such share as his father may give him, but after his death he could claim his father's self-acquired property along with the legitimate sons.

17. In Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh & Anr., [1889-90 Indian Appeals 128], the facts were that the Raja was a Sudra and died leaving behind a legitimate son, an illegitimate son and a legitimate daughter and three widows. The legitimate son had died and the issue was whether the illegitimate son could succeed to the property of the Raja. The Privy Council held that the illegitimate son was entitled to succeed to the Raja by virtue of survivorship.

settled principles to the effect that "firstly, that the illegitimate son does not acquire by birth any interest in his father's estate and he cannot therefore demand partition against his father during the latter's lifetime. But on his father's death, the illegitimate son succeeds as a coparcener to the separate estate of the father along with the legitimate son(s) with a right of survivorship and is entitled to enforce partition against the legitimate son(s) and that on a partition between a legitimate and an illegitimate son, the illegitimate son takes only one-half of what he would have taken if he was a legitimate son." However, the Bench was referring to those cases where the illegitimate son was of a Sudra from a continuous concubine.

19. In the case of Singhai Ajit Kumar & Anr. v.

Ujayar Singh & Ors., [AIR 1961 SC 1334], the main question was whether an illegitimate son of a Sudra vis-`-vis his self-acquired property, after having succeeded to half-share of his putative father's estate, would be entitled to succeed to the other half share got by the widow. The Bench referred to Chapter 1, Section 12 of the Yajnavalkya and the cases of Raja Jogendra Bhupati (supra) and Vellaiyappa Chetty (supra) and concluded that "once it is established that for the purpose of succession an illegitimate son of a Sudra has the status of a son and that he is entitled to succeed to his putative father's entire self-acquired property in the absence of a son, widow, daughter or daughter's son and to share along with them, we cannot see any escape from the consequential and logical position that he shall be entitled to succeed to the other half share when succession opens after the widow's death."

20. The amendment to Section 16 has been introduced and was brought about with the obvious purpose of removing the stigma of illegitimacy on children born in void or voidable marriage (hereinafter, "such children").

21. However, the issues relating to the extent of property rights conferred on such children under Section 16(3) of the amended Act were discussed in detail in the case of Jinia Keotin & Ors. v. Kumar Sitaram Manjhi & Ors. [(2003) 1 SCC 730]. It was contended that by virtue of Section 16(3) of the Act, which entitled such children's rights to the property of their parents, such property rights included right to both self-acquired as well as ancestral property of the parent. This Court, repelling such contentions held that "in the light of such an express mandate of the legislature itself, there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in sub-section (3) of Section 16 of the Act but also would attempt to court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself." Thus, the submissions of the appellants were rejected.

22. In our humble opinion this Court in Jinia Keotin (supra) took a narrow view of Section 16(3) of the Act. The same issue was again raised in Neelamma & Ors. v. Sarojamma & Ors.

[(2006) 9 SCC 612], wherein the court referred to the decision in Jinia Keotin (supra) and held that illegitimate children would only be entitled to a share of the self-acquired property of the parents and not to the joint Hindu family property.

23. Same position was again reiterated in a recent decision of this court in Bharatha Matha & Anr. v.

R. Vijaya Renganathan & Ors. [AIR 2010 SC 2685], wherein this Court held that a child born in a void or voidable marriage was not entitled to claim inheritance in ancestral coparcenary property but was entitled to claim only share in self-acquired properties.

24. We cannot accept the aforesaid interpretation of Section 16(3) given in Jinia Keotin (supra), Neelamma (supra) and Bharatha Matha (supra) for the reasons discussed hereunder:

25. The legislature has used the word "property" in Section 16(3) and is silent on whether such property is meant to be ancestral or self-acquired. Section 16 contains an express mandate that such children are only entitled to the property of their parents, and not of any other relation.

26. On a careful reading of Section 16 (3) of the Act we are of the view that the amended Section postulates that such children would not be entitled to any rights in the property of any person who is not his parent if he was not entitled to them, by virtue of his illegitimacy, before the passing of the amendment. However, the said prohibition does not apply to the property of his parents. Clauses (1) and (2) of Section 16 expressly declare that such children shall be legitimate. If they have been declared legitimate, then they cannot be discriminated against and they will be at par with other legitimate children, and be entitled to all the rights in the property of their parents, both self-acquired and ancestral. The prohibition contained in Section 16(3) will apply to such children with respect to property of any person other than their parents.

27. With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today. The concept of legitimacy stems from social consensus, in the shaping of which various social groups play a vital role. Very often a dominant group loses its primacy over other groups in view of ever changing socio-

economic scenario and the consequential vicissitudes in human relationship. Law takes its own time to articulate such social changes through a process of amendment. That is why in a changing society law cannot afford to remain static. If one looks at the history of development of Hindu Law it will be clear that it was never static and has changed from time to time to meet the challenges of the changing social pattern in different time.

28. The amendment to Section 16 of the Hindu Marriage Act was introduced by Act 60 of 76. This amendment virtually substituted the previous Section 16 of the Act with the present Section.

From the relevant notes appended in the clause relating to this amendment, it appears that the same was done to remove difficulties in the interpretation of Section 16.

29. The constitutional validity of Section 16(3) of Hindu Marriage Act was challenged before this Court and upholding the law, this Court in Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt.) & Ors. v. K. Devi and Ors., [(1996) 4 SCC 76], held that Hindu Marriage Act, a beneficial legislation, has to be interpreted in a manner which advances the object of the legislation. This Court also recognized that the said Act intends to bring about social reforms and further held that conferment of social status of legitimacy on innocent children is the obvious purpose of Section 16 (See para 68).

30. In paragraph 75, page 101 of the report, the learned judges held that Section 16 was previously linked with Sections 11 and 12 in view of the unamended language of Section 16. But after amendment, Section 16(1) stands de-linked from Section 11 and Section 16(1) which confers legitimacy on children born from void marriages operates with full vigour even though provisions of Section 11 nullify those marriages. Such legitimacy has been conferred on the children whether they were/are born in void or voidable marriage before or after the date of amendment.

31. In paragraph 82 at page 103 of the report, the learned Judges made the following observations:

"In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents."32. It has been held in Parayankandiyal (supra) that Hindu Marriage Act is a beneficent legislation and intends to bring about social reforms.

Therefore, the interpretation given to Section 16(3) by this Court in Jinia Keotin (supra), Neelamma (supra) and Bharatha Matha (supra) needs to be reconsidered.

33. With the amendment of Section 16(3), the common law view that the offsprings of marriage which is void and voidable are illegitimate `ipso-jure' has to change completely. We must recognize the status of such children which has been legislatively declared legitimate and simultaneously law recognises the rights of such children in the property of their parents. This is a law to advance the socially beneficial purpose of removing the stigma of illegitimacy on such children who are as innocent as any other children.

34. However, one thing must be made clear that benefit given under the amended Section 16 is available only in cases where there is a marriage but such marriage is void or voidable in view of the provisions of the Act.

35. In our view, in the case of joint family property such children will be entitled only to a share in their parents' property but they cannot claim it on their own right. Logically, on the partition of an ancestral property, the property falling in the share of the parents of such children is regarded as their self acquired and absolute property. In view of the amendment, we see no reason why such children will have no share in such property since such children are equated under the amended law with legitimate offspring of valid marriage. The only limitation even after the amendment seems to be that during the life time of their parents such children cannot ask for partition but they can exercise this right only after the death of their parents.

36. We are constrained to differ from the interpretation of Section 16(3) rendered by this Court in Jinia Keotin (supra) and, thereafter, in Neelamma (supra) and Bharatha Matha (supra) in view of the constitutional values enshrined in the preamble of our Constitution which focuses on the concept of equality of status and opportunity and also on individual dignity. The Court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents. A child born in such relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage. This is the crux of the amendment in Section 16(3). However, some limitation on the property rights of such children is still there in the sense their right is confined to the property of their parents. Such rights cannot be further restricted in view of the pe-

existing common law view discussed above.

It is well known that this Court cannot interpret a socially beneficial legislation on the basis as if the words therein are cast in stone. Such legislation must be given a purposive interpretation to further and not to frustrate the eminently desirable social purpose of removing the stigma on such children. In doing so, the Court must have regard to the equity of the Statute and the principles voiced under Part IV of the Constitution, namely, the Directive Principles of State Policy. In our view this flows from the mandate of Article 37 which provides that it is the duty of the State to apply the principles enshrined in Chapter IV in making laws. It is no longer in dispute that today State would include the higher judiciary in this country. Considering Article 37 in the context of the duty of judiciary, Justice Mathew in Kesavananda Bharati Sripadagalvaru v. State of Kerala and another [(1973) 4 SCC 225] held:

"......I can see no incongruity in holding, when Article 37 says in its latter part "it shall be the duty of the State to apply these principles in making laws", that judicial process is `State action' and that the judiciary is bound to apply the Directive Principles in making its judgment."38. Going by this principle, we are of the opinion that Article 39 (f) must be kept in mind by the Court while interpreting the provision of Section 16(3) of Hindu Marriage Act. Article 39(f) of the Constitution runs as follows:

"39. Certain principles of policy to be followed by the State: The State shall, in particular, direct its policy towards securing- (a) xxx

(b) xxx

(c) xxx

(d) xxx

(e) xxx

(f) that children are given opportunities

and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment."39. Apart from Article 39(f), Article 300A also comes into play while interpreting the concept of property rights. Article 300A is as follows:

"300A. Persons not to be deprived of property save by authority of law: No person shall be deprived of his property save by authority of law."40. Right to property is no longer fundamental but it is a Constitutional right and Article 300A contains a guarantee against deprivation of property right save by authority of law.

41. In the instant case, Section 16(3) as amended, does not impose any restriction on the property right of such children except limiting it to the property of their parents. Therefore, such children will have a right to whatever becomes the property of their parents whether self acquired or ancestral.

42. For the reasons discussed above, we are constrained to take a view different from the one taken by this Court in Jinia Keotin (supra), Neelamma (supra) and Bharatha Matha (supra) on Section 16(3) of the Act.

43. We are, therefore, of the opinion that the matter should be reconsidered by a larger Bench and for that purpose the records of the case be placed before the Hon'ble the Chief Justice of India for constitution of a larger Bench.

“the right to maintenance is condition to the fatherhood of the child being established.”

ORDER1. Social justice is not constitutional claptrap but fighting faith which enlivens legislative texts with militant meaning. The points pressed in the Special Leave Petition, which we negative, illustrate the functional relevance of social justice as an aid to statutory interpretation.

2. The conjugal tribulations of Mrs. Veena, the respondent, who hopefully married Capt. Kaushal, the petitioner, and bore two young children by him, form the tragic backdrop to this case. The wife claimed that although her husband was affluent and once affectionate, his romantic tenderness turned into flagellant tantrums after he took to the skies as pilot in the Indian Airlines Corporation. Desertion, cruelty and break-up of family followed, that sombre scenario which, in its traumatic frequency, flaring up even into macabre episodes consternates our urban societies. The offspring of the young wedlock were not only two vernal innocents but two dismal litigations one for divorce, by the husband, hurling charges of adultery, and the other for maintenance, by the wife, flinging charges of affluent cruelty and diversion of affection after the Airlines assignment. These are versions, not findings.

3. We do not enter the distressing vicissitudes of this marital imbroglio since proceedings are pending and incidental moralizings, unwittingly injuring one or the other party, are far from our intent and outside the orbit of the present petition. Even so, we cannot help but observe that the current Indian ethos rightly regards the family and its stability as basic to the strength of the social fabric and the erotic doctrine of 'sip every flower and change every hour' and the philosophy of philandering self-fulfilment, unless combated on the militant basis of gender justice and conditions of service, are fraught with catastrophic possibilities. All public sector (why, private sector too) institutions, including the Airlines, must manifest, in their codes of discipline, this consciousness of social justice and inner morality as essential to its life style. Lascivious looseness of man or wife is an infectious disease and marks the beginning of the end of the material and spiritual meaning of collective life. The roots of the rule of law lie deep in the collective consciousness of a community and this sociological factor has a role to play in understanding provisions like Section 125 Criminal Procedure Code which seek to inhibit neglect of women and children, the old and the Infirm. A facet of this benignancy of Section 125 falls for study in the present proceeding.

4. The husband sought divorce through the civil court and the wife claimed maintenance through the criminal Court. As an interim measure, the District Court awarded maintenance and the High Court fixed the rate at 400/- per mensem for the spouse as a provisional figure. Meanwhile, the magistrate, on the evidence before him, ordered ex-parte, monthly maintenance at Rs. 1000/- for the mother and two children together.

5. Sri S. T. Desai urged two points which merit reflection but meet with rejection. They are that : (i) a civil court's determination of the quantum is entitled to serious weight and the criminal court, in its summary decision, fell into an error in ignoring the former; (ii) the awardable maximum for mother and children, as a whole Under Section 125 of the Code was Rs. 500/- having regard to the text of the section.

6. Broadly stated and as an abstract proposition, it is valid to assert, as Sri Desai did, that a final determination of a civil right by a civil court must prevail against a like decision by a criminal court. But here two factors make the principle inapplicable. Firstly, the direction by the civil court is not a final determination under the Hindu Adoptions and Maintenance Act but an order pendente lite, Under Section 24 of the Hindu Marriage Act to pay the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable. Secondly, this amount does not include the claim for maintenance of the children although the order does advert to the fact that the respondent has their custody. This incidental direction is no comprehensive adjudication.

7. Therefore, barring marginal relevance for the Magistrate it does not bar his jurisdiction to award a higher maintenance. We cannot, therefore, fault the Magistrate for giving Rs. 1000/- on this score.

8. The more important point turns on the construction of Section 125, Crl. Procedure Code which is a reincarnation of Section 488 of the old Code except for the fact that parents also are brought into the category of persons eligible for maintenance and legislative cognizance is taken of the devaluation of the rupee and the escalation of living costs by raising the maximum allowance for maintenance from Rs. 100/- to Rs. 500/-. The relevant portion of the section reads :

125. (i) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct."

9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by Courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause--the cause of the derelicts.

10. Sri Desai contends that Section 125 of the Code has clearly fixed the ceiling of the monthly allowance "for the maintenance of...wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole". Assuming the Parliament not to be guilty of redundancy it is argued that the words "in the whole" mean that the total award for wife, child, father or mother together cannot exceed Rs. 500/-. We do not agree. Both precedentially and interpretatively the argument is specious.

11. The words which connote that the total, all together, cannot exceed Rs. 500/- namely "in the whole" have been inherited from the previous Code although some ambiguity in the sense of the clause is injected by these words. Clarity, unfortunately, has not been a strong point of our draftsmanship, at least on occasions, and litigation has been engendered by such deficiency. Luckily, these words have been subject to decisions which we are inclined to adopt as correct. A Full Bench of the Bombay High Court in Prabhavati v. Swnatilal has held that the sum specified is not compendious but separate. Chagla C.J. explained the position correctly, if we may say so with respect :

The suggestion that the jurisdiction of the Magistrate is limited to allowing one hundred rupees in respect of maintenance of the wife and the children jointly is, in our opinion, an impossible construction once it is accepted that the right of the wife and of each child is an independent right. Such a construction would lead to extremely anomalous results. If, for instance, a wife applies for maintenance for herself and for her children and the Magistrate allows a maintenance of one hundred rupees, and if thereafter an illegitimate child were to come forward and to make an application for maintenance, the Magistrate having allowed an allowance to her up to the maximum of his jurisdiction would be prevented from making any order in favour of the illegitimate child. Or, a man may have more than one wife and he may have children by each one of the wives. If the suggestion is that maintenance can be allow-ed in a compendious application to be made and such maintenance cannot exceed one hundred rupees for all the persons applying for maintenance, then in a conceivable case a wife or a child may be deprived of maintenance altogether under the section.

The intention of the Legislature was clear, and the intention was to cast an obligation upon a person who neglects or refuses to maintain his wife or children to carry out his obligation towards his wife or children. The obligation is separate and independent in relation to each one of the persons whom he is bound in law to maintain. It is futile to suggest that in using the expression "in the whole" the Legislature was limiting the jurisdiction of the Magistrate to passing an order In respect of all the persons whom he is bound to maintain allowing them maintenance not exceeding a sum of one hundred rupees.

Meeting the rival point of view Chief Justice Chagla held :

... we are unable to accept the view taken by the Division Bench that the jurisdiction of the Magistrate is confined to making a compendious order allowing one hundred rupees in respect of all the persons liable to be maintained.

12. A recent ruling of the Calcutta High Court in Md. Bashir v. Noon Jahan Begum 1971 Crl.L.J. 547@553 has taken a similar view reviewing the case' law in India on the subject. We agree with Talukdar, J. who quotes Mr. Justice Macardie :

All law must progress or it must perish in the esteem of man.

In short, the decided cases have made a sociological approach to conclude that each claimant for maintenance, be he or she wife, child, father or mother, is independently entitled to maintenance up to a maximum of Rs.500/-.

13. Indeed, an opposite conclusion may lead to absurdity. If a woman has a dozen children and if the man neglects the whole lot and, in his addiction to a fresh mistress, neglects even his parents and all these members of the family seek maintenance in one petition against the delinquent respondent, can it be that the Court cannot award more than Rs. 500/- for all of them together ? On the other hand if each filed a separate petition there would be a maximum of Rs. 500/- each awarded by the Court. We cannot, therefore, agree to this obvious jurisdictional inequity by reading a limitation of Rs. 500/- although what the section plainly means is that the Court cannot grant more than Rs. 500/- for each one of the claimants. "In the whole" in the context means taking all the items of maintenance together, not all the members of the family put together. To our mind, this interpretation accords with social justice and semantics and, more than all, is obvious :

It is sometimes more important to emphasize the obvious than to elucidate the obscure.

-Attributed to Oliver Wendell Holmes.

14. We admit the marginal obscurity in the diction of the section but mind creativity in interpreting the provision dispels all doubts. We own that Judges perform a creative function even in interpretation.

All the cases in this book are examples, greater or smaller, of this function.

writes Prof. Griffith in the Politics of the Judiciary. J.A.G. Griffith 'The Politics of the Judiciary' p. 175

15. The conclusion is inevitable, although the argument to the contrary is ingenious, that the Magistrate did not exceed his powers while awarding Rs. 1000/- for mother and children all together.

16. We have been told by Shri S. T. Desai that the divorce proceeding terminated adversely to Ms client but an appeal is pending. If the appeal ends in divorce being decreed, the wife's claim for maintenance qua wife comes to an end and Under Section 127 of the Code the Magistrate has the power to make alterations in the allowance order and cipherise it. We make the position clear lest confusion should breed fresh litigation.

17. The special leave petition is dismissed.

ORDER (22-8-78)

18. Noticing a patent error which has unfortunately crept in the above judgment in the last paragraph thereof, counsel on both sides were given notice to appear and they were heard.

19. Section 125(1), Explanation (b) of the Cr. P.C. reads :

Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

20. The last paragraph in the judgment concludes with the statement "If the appeal ends in divorce being decreed, the wife's claim for maintenance qua wife comes to an end and Under Section 127 of the Code, the Magistrate has the power to make alterations in the allowance order and cipherise it."

21. The judgment would seem to indicate that once divorce is decreed the wife ceases to have any right to claim maintenance and that such an impact can be brought about by an application Under Section 127 of the Code. It is clear that this conclusion contradicts the express statutory provision. The advocates on both sides agree that this is a patent error and further agree that the law may be correctly stated and the contradiction with the statute eliminated. Therefore, we direct that in substitution of the last paragraph, the following paragraph will be introduced.

22. "We have been told by Shri S. T. Desai that the divorce proceeding has terminated adversely to his client but that an appeal is pending. Whether the appeal ends in divorce or no, the wife's claim for maintenance qua wife under the definition contained in the Explanation (b) to Section 125 of the Code continues unless parties make adjustments and come to terms regarding the quantum or the right to maintenance. We make the position clear that mere divorce does not end the right to maintenance."

23. We regret the error and pass this order under Article 137 of the Constitution' with the consent of both sides so that the ends of justice and the law that this Court lays down may be vindicated.

A brief reference to the factual position would suffice because essentially the dispute has to be adjudicated with reference to scope and ambit of Section 125 of the Code of Criminal Procedure, 1973 (in short the 'Code').

The case at hand according to appellant is a classic example of the inadequacies of law in protecting a woman who unwittingly entered into relationships with a married man.

Factual position as projected by the appellant is as follows:-

Appellant claims that she was married to respondent No.2 some time in 1994 according to the customary rites and rituals of their caste. Though initially, the respondent No.2 treated her nicely, thereafter he started ill-treating her and she was subjected to mental and physical torture. On enquiry about the reason for such a sudden change in his behaviour, the appellant came to know that respondent No.2 had developed illicit relationship with a lady named Veenaben. During the period the appellant stayed with the respondent, she became pregnant and subsequently, a child was born. As respondent No.2 neglected the appellant and the child born, an application in terms of Section 125 of the Code was filed claiming maintenance. The application was filed before the learned Judicial Magistrate, First Class (hereinafter referred to as the 'JMFC') Himmatnagar. Respondent No.2 opposed the application by filing written statements taking the stand that the appellant was not his legally married wife and the child (respondent No.3) was not his son. He also denied having developed illicit relationship with Veenaben. He claimed that actually she was married to him more than 22 years back and two children were born. Their son Hament had died in the road accident in July 1990. In the Claim Petition name of Veenaben was mentioned as the legal heir and in the Voters List, Ration Card and Provident Fund records, Veenaben was shown as the wife of respondent No.2. On 23.6.1998 learned JMFC allowed the Claim Petition and granted maintenance. A criminal revision was filed by respondent No.2 before learned Additional Sessions Judge, Sabaakatha, Dist. Himmatnagar, who by his order dated 26.11.1998 set aside the judgment dated 23.6.1998 as passed by the learned JMFC and remanded the matter to the trial Court for adjudication afresh after affording an opportunity to respondent No.2 to cross examine the witnesses of the appellant. By order dated 31.7.1999, learned JMFC after considering the matter afresh awarded maintenance to both the appellant and the child.

A Criminal Revision Application No.65/95 was filed by respondent No.2 against the order dated 31.7.1999. By order dated 12.7.2001, learned Additional District Judge, Sabarkatha dismissed the application. The respondent No.2 filed a Special Criminal Application No.568/2001 before the Gujarat High Court which by the impugned order held that the appellant was not legally wedded wife of respondent No.2. Reliance was placed on documents filed by respondent No.2 to conclude that before the alleged date of marriage between the appellant and respondent No.2, the latter was already married to Veenaben with reference to the documents produced. However, maintenance granted to the child (respondent No.3) was maintained and amount as awarded to him i.e. Rs.350/- was enhanced to Rs.500/-. A direction was also given to pay the enhanced amount from the date of order of the learned JMFC i.e. 31.7.1999.

In support of the appeal, learned counsel for the appellant submitted that the High Court has taken a too technical view in the matter. Strict proof about a valid marriage is not the sine qua non for getting maintenance under Section 125 of the Code. The documents produced by respondent No.2 to substantiate the plea of earlier marriage with Veenaben should not have been given primacy over the clinching evidence adduced by the appellant to show that she was unaware of the alleged marriage. Since respondent No.2 is guilty of fraud and mis-representation, the equity should not weigh in his favour. Law is intended to protect destitute and harassed woman and rigid interpretation given to the word 'wife' goes against the legislative intent. In any event, nothing has been shown by respondent No.2 to show that there is any customary bar for a second marriage. Customs outweigh enacted law. That being the position, the order passed by the learned JMFC should be restored. It was residually submitted that when the amount was claimed as maintenance there was statutory limitation prescribed at Rs.500/- which has been done away with by omitting the words of limitation so far as the amount is concerned by amendment in 2001 to the Cr.P.C. Therefore, taking into account the high cost of living the quantum of maintenance should be enhanced for the child.

In response, learned counsel for respondent No.2 submitted that law is fairly well settled regarding the definition of the expression 'wife' and there is no scope for giving an extended meaning to include a woman who is not legally married.

There may be substance in the plea of learned counsel for the appellant that law operates harshly against the woman who unwittingly gets into relationship with a married man and Section 125 of the Code does not give protection to such woman. This may be an inadequacy in law, which only the legislature can undo. But as the position in law stands presently there is no escape from the conclusion that the expression 'wife' as per Section 125 of the Code refers to only legally married wife.

The provision is enacted for social justice and specially to protect women and children as also old and infirm poor parents and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (in short the 'Constitution'). The provision gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves. Its provisions are applicable and enforceable whatever may be personal law by which the persons concerned are governed. (See Nanak Chand v. Chandra Kishore (AIR 1970 SC 446). But the personal law of the parties is relevant for deciding the validity of the marriage and therefore cannot be altogether excluded from consideration. (See Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr.(AIR 1988 SC 644) There is no inconsistency between Section 125 of the Code and the provisions in the Hindu Adoption and Maintenance Act, 1956 (in short the 'Adoption Act'). The scope of the two laws is different.

Section 125 of the Code at the point of time when the petition for maintenance was filed reads as follows:

"125(1)- If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause

(b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

Explanation:- For the purposes of this Chapter-

(a) 'minor' means a person who, under the provisions of the Indian Majority Act, 1875 is deemed not to have attained his majority;

(b) 'wife' includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried."

By the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) the words 'not exceeding five hundred rupees in the whole' have been omitted w.e.f. 24.9.2001.

In Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr. (AIR 1999 SC 3348) it was held that the validity of the marriage for the purpose of summary proceedings under Section 125 of the Code is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceedings is not as strict as is required in a trial of offence under Section 494 of Indian Penal Code, 1860 (in short the 'IPC'). If the claimant in proceedings under Section 125 succeeds in showing that she and the respondent have lived together as husband and wife, the Court has to presume that they are legally wedded spouses, and in such a situation one who denies the marital status can rebut the presumption. Once it is admitted that the marriage procedure was followed then it is not necessary to further probe as to whether the said procedure was complete as per the Hindu rites, in the proceedings under Section 125 of the Code. It is to be noted that when the respondent does not dispute the paternity of the child and accepts the fact that marriage ceremony was performed though not legally perfect, it would hardly lie in his mouth to contend in proceedings under Section 125 of the Code that there was no valid marriage as essential rites were not performed at the time of said marriage. The provision under Section 125 cannot be utilized for defeating the rights conferred by the legislature on the destitute women, children or parents who are victims of social environment. The provision is a measure of social justice and as noted above specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution.

The sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause-the cause of the derelicts. (See Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807).

In Smt. Yamunabai's case (supra), it was held that expression 'wife' used in Section 125 of the Code should be interpreted to mean only a legally wedded wife. The word 'wife' is not defined in the Code except indicating in the Explanation to Section 125 its inclusive character so as to cover a divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status. The expression must therefore be given the meaning in which it is understood in law applicable to the parties. The marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is therefore not entitled to the benefit of Section 125 of the Code or the Hindu Marriage Act, 1955 (in short the 'Marriage Act'). Marriage with person having living spouse is null and void and not voidable. However, the attempt to exclude altogether the personal law applicable to the parties from consideration is improper. Section 125 of the Code has been enacted in the interest of a wife and one who intends to take benefit under sub- section (1)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. The issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes such status or relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the provision in Section 125 of the Code is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law. The issue whether the Section is attracted or not cannot be answered except by reference to the appropriate law governing the parties.

But it does not further the case of the appellant in the instant case. Even if it is accepted as stated by learned counsel for the appellant that husband was treating her as his wife it is really inconsequential. It is the intention of the legislature which is relevant and not the attitude of the party.

In Smt. Yamunabai's case (supra) plea similar to the one advanced in the present case that the appellant was not informed about the respondent's earlier marriage when she married him was held to be of no avail. The principle of estoppel cannot be pressed into service to defeat the provision of Section 125 of the Code.

It may be noted at this juncture that the legislature considered it necessary to include within the scope of the provision an illegitimate child but it has not done so with respect to woman not lawfully married. However, desirable it may be, as contended by learned counsel for the appellant to take note of the plight of the unfortunate woman, the legislative intent being clearly reflected in Section 125 of the Code, there is no scope for enlarging its scope by introducing any artificial definition to include woman not lawfully married in the expression 'wife'.

As noted by this Court in Vimala (K.) v. Veeraswamy (K.) (1991 (2) SCC 375) when a plea of subsisting marriage is raised by the respondent-husband it has to be satisfactorily proved by tendering evidence to substantiate that he was already married.

In the instant case the evidence on record has been found sufficient by the Courts below by recording findings of fact that earlier marriage of respondent was established.

In that view of the matter, the application so far as claim of maintenance of the wife is concerned stands dismissed.

That brings us to the other question relating to adequacy of the quantum of maintenance awarded to the child. It is not in dispute that when the Claim Petition was filed, Rs.500/- was claimed as maintenance as that was the maximum amount which could have been granted because of the un-amended Section 125. But presently, there is no such limitation in view of the amendment as referred to above.

Learned counsel for respondent No.2 submitted that there was no amendment made to the Claim Petition seeking enhancement. We find that this is a too technical plea. As a matter of fact, Section 127 of the Code permits increase in the quantum. The application for maintenance was filed on 1.9.1995. The order granting maintenance was passed by the learned JMFC on 31.7.1999. The High Court enhanced the quantum awarded to the child from Rs.350/- to Rs.500/- with effect from the order passed by learned JMFC. No dispute has been raised regarding enhancement and in fact there was a concession to the prayer for enhancement before the High Court as recorded in the impugned judgment. Considering the peculiar facts of the case, we feel that the amount of maintenance to the child can be enhanced to Rs.850/- with effect from today.

Learned counsel for the respondent No.2 has submitted that as a humanitarian gesture, the respondent No.2 agrees to pay a lump-sum amount to settle the dispute. In case the respondent No.2 pays a sum of rupees two lakhs only within a period of four months to the appellant, the same shall be in full and final settlement of the claim of respondent No.3 for maintenance. While fixing the quantum we have taken note of the likely return as interest in case it is invested in fixed deposit in a Nationalised Bank, and the likely increase in the quantum of maintenance till respondent No.3 attains majority. Till deposit is made, the quantum fixed by this order shall be paid. If the respondent No.2 wants to make lump-sum payment in terms of this order, the amount shall be paid by the Bank draft in the name of respondent No.3 with appellant as mother guardian. The amount shall be kept in a fixed deposit with monthly interest payment facility till respondent No.3 attains majority.

Entitled to Maintenance under Section 125 of the CrPC for illegitimate child born out of an illicit relationship

JUDGMENT Harjit Singh Bedi, J.

1. This appeal by special leave arises out of the following facts.

2. The appellant herein, Dimple Gupta, filed an application under section 125 of the Code of Criminal Procedure through her mother Narain Dassi claiming maintenance at Rs. 500/- per month from the respondent Rajiv Gupta alleging that he was her father as she had been born out of a relationship between him and her mother. It was alleged in the application that she was living with her mother at village Nogali Tehsil Rampur, Himachal Pradesh at the time of the filing of the petition and that she had been conceived out of wedlock when her mother was a student in the Xth Class in the Government High Court School at village Nogali. It was further alleged that when the respondent got to know that Narain Dassi had concived shehad been taken by him to Chandigarh in order to get the foetus aborted but the Doctor advised that as the pregnancy was at an advanced stage it was not possible to undergo the procedure. It was further alleged that the respondent had then abandoned her mother whereafter she was born on 8.7.1991 at village Kalpa.

3. The Trial Magistrate after recording evidence and in the course of an elaborate judgment held that the appellant was indeed the illegitimate child of Rajiv Gupta born from Narain Dassi. For arriving at this conclusion the Magistrate relied on the ocular evidence of Narain Dassi PW1, Smt. Kanchuk Doma PW2, Smt. Chandra Devi PW3 and PW4 Bhag Rath Pradhan of village Kalpa who proved an abstract (Ex. PW-4/A) of the Birth and Death Register showing Rajiv Gupta as the father of Dimple Gupta, and PW5 Devender Singh a Teacher who proved the admission forms filled in at the time of the appellant's admission in school on 3.9.1996 showing her caste to be Gupta. The attempt of the respondent on the other hand to show that Narain Dassi was a woman of loose character and had been available to several other male companions was sought to be proved by the evidence of RW-3 Hem Raj, the Manager of Gopal Guest House at Rampur who brought the record showing that a girl under the name of Kavita would often entertain guests in the Guest House and that Kavita was in fact Narain Dassi as he knew her personally.

4. Aggrieved by the judgment of the trial Judge, respondent Rajiv Gupta filed Criminal Revision No. 62 of 2001 in the High Court at Shimla. The learned Single Judge of the High Court reversed the judgment of the tril Judge holding that in the light of several judgments of the High Court in identical matter it had been held that in a case of a child born out of an illicit relationship the mother was in the capacity of an accomplice to the crime and as such it was essential that her statement be corroborated by other evidence to prove the case. The High Court also observed that it was not sufficient for the applicant to show that the respondent was indeed her father but the court had also to give a finding that in all reasonableness no one else could have been the father and examining the evidence in the light of the above principles discarded the statement of PW1 Narain Dassi an unworthy of credence and also rejected the evidence of PW2 Kanchuck Dolma on the ground that as she had disowned her initial statements in Court after she had been re-called for evidence and had supported the respondent's case, whereas PW3 Chandra Devi was a liar as she had admitted that at the relevant time she may have been in Sri Lanka and thus could not have witnessed the presence of Narain Dassi and Rajeev Gupta in the Guest House. The court also observed that in the school admission form Ex.D.A. the column pertaining to the father's name had been left blank whereas in the Birth entry Ex.PW4/A the father's name had been entered as Rajiv Kumar and as such could not be connected with the respondent whose name was Rajiv Gupta. The High Court accordingly upset the judgment of the trial Magistrate, allowed the revision petition and dismissed the application leading to the filing of this appeal.

5. At the very outset, the learned counsel for the appellant has pointed out that the finding recorded by the trial Magistrate was based on a correct appreciation of the evidence and the statement of Narain Dassi had been corroborated by several other witnesses and documentary evidence on record and that the High Court was not justified in reversing the judgment without adequate reason and on mere conjectures. The learned counsel for the respondent has, however, placed reliance on Nand Lal Misra v. Kanhaiya Lal Misra, AIR (1960) SC 882 to argue that a matter such the present one did not justify the entertainment of a petition under Article 136 of the Constiutition and that in any case the findings recorded by the High Court called for no interference as it had been held in several judgments that in the case of a claim based on illegitimacy, the statement of the mother was to be treated with some suspicion and could only be accepted with other corroborative evidence.

6. We have considered the arguments advanced by the learned counsel for the parties. Concededly Narain Dassi and Rajiv Gupta were not married. The appellant therefore have virtually no rights Which she can enforce during her minority except through an application under Section 125 of the Code of Criminal Procedure. We are of the opinion that the entertainment of a petition under Article 136 of the Constitution of India is thus justified on the facts of the case and this is also the ratio of the judgment in the Nand Lal's case.We have also perused the judgments of the trial Magistrate and the High Court. We find no reasons to justify a reversal of the findings that had been recorded by the trial Magistrate as the application was supported by the Statement of PW1 Narain Dassi and several other witnesses. PW3 Chandra Devi specifically deposed that Narain Dassi and respondent Rajiv Gupta had stayed in her house in village Kalpa several years earlier. The High Court has held that statement of PW3 could not be relied upon as it appeared that she had been in Sri Lanka at the relevant time and could not have therefore been host to Narain Dassi and Rajiv Gupta in Kalpa. We are of the opinion that in such matters it is impossible to lay down with precision the chain of events more particularly when illiterate villagers with no sense of time are involved. We find no reason therefore to hold as to why the statement of PW3 should not be believed. Likewisem we find that PW4 Bhag Rath Pradhan of village Kalpa had proved the extracts of the birth register Ex.PW-4/A which shows the father's name of Dimple Gupta as Rajiv Kumar whereas PW5 Devender Singh, a teacher has proved the admission form of Dimple Gupta where the column pertaining to the father's name has been left blank as would perhaps be expected from an unwed mother as it would be best to keep silent on the subject to avoid embarrassment to all concerned particularly at the time when the child was being admitted to school. Much has been made of the fact that the PW2 Kanchka Dolma who had not supported the claim of the appellant although she had been cited as her witness. In this connection it has to be noticed that when PW2 had first been examined in court on 25.10.1994 she had fully supported the case of the applicant but on recall for evidence on 29.2.1996 she did a volte face and disowned her earlier statements. The trial Magistrate was therefore justified in observing that this witness had been won over in the interregnum.

7. The High Court has placed reliance on Dorje Wangial v. Kaaram Singh (1997) 2 Sim.L.C. 277 to contend that the statement of Narian Dassi being in the nature of accomplicae evidence was liable to be corroborated by other evidence to be accepted. Even assuming this statement to be a correct enunciation of the Law we find that Narain Dassi's statement gets adequate corroboration from the evidence which we have already noted above. We accordingly allow the appeal, set aside the judgment of the High Court and restore that of the trial Magistrate. The appellant shall be paid all the arrears upto date within a period of three months from today and continue to receive the maintenance regularly as per law.

If a man and woman are living under the same roof and cohabiting for a number of years, there will be presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate

JUDGMENT:The Judgment of the Court was delivered by R.M. SAHAI, J.- The short question that arises for consideration in this plaintiff's appeal directed against the judgment and order of the Madras High Court allowing the appeal, setting aside the judgment and decree of the First Appellate Court restoring that of the trial court and dismissing the suit of the appellant for declaration and possession over the land in dispute, is if the High Court was justified in interfering with the presumption drawn by the Appellate Court of valid marriage arising out of prolonged living together of a man and woman as husband and wife.

2. Manthi, admittedly, had three sons one of them being Chinathambi. His legally wedded wife was one Pavayee. He also lived with another woman. whose name, too, was Pavayee. From the second Pavayee he had issues one of them being Ramaswamy. He sold his one-third share, which he received from his father, in 1971 to the appellant. This was resisted by descendants of other two branches. The appellant therefore filed suit for declaration and recovery of possession. Two main questions arose first if Ramaswamy was legitimate child of Chinathambi, second the property being ancestral and coparcenary property bequeathed by Manthi in favour of his sons and grandsons but excluding Ramaswamy, could any valid title vest in him under deed of settlement executed by his father in 1968.

3. The trial court accepted the claim of defendants that Ramaswamy was an illegitimate child of Chinathambi as second Pavayee was only a concubine and not a legally wedded wife of Chinathambi. It was also found that the deed of settlement made by Chinathambi could not convey any right, title or interest in favour of Ramaswamy or his mother as it was in respect of coparcenary property or joint family property and, therefore, the deed of settlement was invalid. In appeal both the findings were set aside. The Appellate Court found that Chinathambi and Pavayee No. 2 having lived together as husband and wife since 1920 a presumption arose in law that they were husband and wife. The Appellate Court further found that in the compromise entered between the three sons of Manthi in the suit filed by Chinathambi there was a partition and the parties agreed that the compromise arrived at by them may be given effect to without effecting any partition by metes and bounds as they were in possession of their separate share. It was, therefore, held that Chinathambi got exclusive right over his share under the compromise and he was entitled to execute the deed of settlement in 1968. In second appeal the presumption drawn by the Appellate Court was found to have been rebutted as if Pavayee No. 2 would have been the legally married wife of Chinathambi, her name or the name of her sons would have found mention in the will executed by Manthi, the father of Chinathambi. It was also found that when compromise was arrived between the members of the family on a suit filed by Chinathambi no reference was made either to Pavayee or to her offspring, namely, Ramaswamy. Reliance was also placed on the depositions of PW 6 and DW 4 in support of the conclusion that no legal marriage had come into being between Chinathambi and Pavayee No. 2.

4. What has been settled by this Court is that if a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two. But the presumption is rebuttable (see Gokal Chand v. Parvin Kumari1). It has been found by all the courts including the High Court that Chinathambi and Pavayee No. 2 lived together since long. But the High Court held that the presumption stood rebutted for reasons stated earlier. The question is if any of the circumstances taken individually or together were sufficient to warrant the finding that the presumption stood rebutted. Taking each one of them it may be stated that the omission to mention the name of a woman who was living as a concubine and her offspring in the will executed by the father-in-law could not destroy the presumption which otherwise arose in law. In the Hindu society no father would, normally, tolerate behaviour of his son of having a concubine, therefore, the mere fact that Manthi while executing the will did not mention the name of Pavayee No. 2 or her offspring was of no consequence. Similarly the absence of any reference to Pavayee and her children in the compromise entered into between Chinathambi and his brothers was totally irrelevant circumstance. The suit was filed for partition by one of the members of joint Hindu family for his share on strength of will executed by his father. Since his children were not given any share by his father they could not have been party either in the suit or in the compromise decree. The absence of their name therefore could not be taken adversely for destroying the presumption. As regards evidence of PW 6 or DW 4 their depositions are on record. It does not indicate that they stated that Chinathambi and Pavayee did not live together. Since it was not disputed that Ramaswamy was born of Chinathambi and Pavayee who lived together as husband and wife since 1920 each of these circumstances was irrelevant and could not have resulted in rebutting the presumption. In our opinion the High Court was not justified in interfering with the findings of fact recorded by the First Appellate Court arrived at after appreciating the evidence on record.

5. In order to overcome the difficulty it was vehemently argued by the learned counsel for respondent that even if it is assumed that Pavayee was living with. Chinathambi since 1920 there being evidence on record to establish that her husband was alive when she came to live with Chinathambi, she was leading an adulterous life and no law recognizes such relationship as valid, consequently the presumption, if any, in favour of a legal marriage stood rebutted. Reliance has been placed on observations made in the judgments at various places and even the statement of Pavayee herself that she had left her husband and had come to live with Chinathambi. It appears unnecessary to express any opinion as to whether the relationship between Chinathambi and Pavayee was adulterous and if it was sufficient to 1 AIR 1952 SC 231: 1952 SCR 825 destroy the presumption in law as this plea does not appear to have been raised in the written statement nor any issue was framed on it nor any of the courts have recorded any finding on it.

6. As regards the deed of settlement executed by Chinathambi it having been found that Chinathambi got his share by way of partition decree, the ancestral or coparcenary nature of property came to an end and Chinathambi became its exclusive owner. Consequently he could execute a deed of settlement in favour of his wife and children. Since Ramaswamy derived his title from the settlement deed it was valid and he could convey his interest in favour of the appellant.

7. In the result this appeal succeeds and is allowed. The judgment and decree of the High Court is set aside and that of the First Appellate Court is restored. The parties shall however bear their own costs.

1. This appeal has been preferred against the judgment and order dated 14.8.2003 in Civil Misc. Writ Petition No.19334 of 2003 passed by the High Court of Judicature at Allahabad by which the High Court dismissed the writ petition of the appellants in view of the concurrent findings recorded by the three statutory authorities under the Statute.

2. Facts and circumstances giving rise to this case are that one Chandra Deo Singh was recorded as the khatedar of Khata Nos.485, 620, 146 and 66 of Village Bhojapur and Khata No.21 of Village Kanshari. The respondents in appeal, Rajni Kant and Anjani Kumar claimed themselves to be the sons of said Chandra Deo Singh and filed objections under Section 9-A(2) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as `Consolidation Act') and they asked for inclusion of their names as his heirs. Another objection was filed by the appellants in the disputed khata submitting that the said respondents had no right or interest in the suit land, not being the sons of late Chandra Deo Singh and the appellants were his only legal heirs. The Consolidation Officer having framed large number of issues and having provided full opportunity of hearing to both the parties to lead evidence and make submissions, passed an order dated 8.11.2000, allowing the objections filed by the respondents and further directing to record their names. Being aggrieved, the appellants preferred the appeal before the Settlement Officer which had been dismissed vide judgment and order dated 16.2.2001. Being aggrieved, the appellants preferred Revision No.958 under Section 48 of the Consolidation Act which also stood dismissed vide judgment and order dated 15.3.2003.

3. The appellants further agitated the issue, challenging the said judgments and orders by filing Writ Petition No.19334/2003 which has also been dismissed vide judgment and order dated 14.8.2003. Hence, this appeal.

4. Shri Mahabir Singh, Ld. Senior counsel, appearing for the appellants, has submitted that mother of the appellants, Smt. Sonbarsa died in 1945. Chandra Deo Singh, father of the appellants remained in Jail as a Freedom Fighter from 1945-47. There is nothing on record to show that appellants' father got married with the mother of the respondents Smt. Shakuntala in accordance with law. At the most she could be concubine of Chandra Deo Singh and being illegitimate children, the respondents have no right to inherit any share in the suit land. More so, the respondents were born prior to having started live-in-relationship between Chandra Deo Singh and said Smt. Shakuntala as is evident from the School Register and School leaving certificate produced by the appellants before the statutory authorities as well as before the High Court and this Court. The said documents had not been properly appreciated by any of the authorities. The findings of facts recorded by the statutory authorities are perverse being contrary to evidence on record produced by the appellants. The High Court did not make any attempt to appreciate the evidence at all. Findings so recorded, are perverse, being contrary to the evidence on record. The appeal has merit and thus, deserves to be allowed.

5. Per contra, Shri Abhay Kumar, Ld. Counsel appearing for the respondents has submitted that three statutory authorities under the Consolidation Act have recorded the concurrent finding of fact that Chandra Deo Singh and Smt. Shakuntala were living together for a long time. Their relationship as husband and wife had been accepted by the Society as well as the family members. In many official documents, name of Chandra Deo Singh has been shown as the father of the respondents. In the beginning, Chandra Deo Singh did not disclose the relationship with Smt. Shakuntala because of social conditions that the Society may not accept their relationship even after the death of his wife Smt. Sonbarsa. Both the respondents were born out of their relationship. Appeal lacks merits and is liable to be dismissed.

6. We have considered the rival submissions made by learned counsel for the parties and perused the record.

In fact, statutory authorities under the Consolidation Act enjoys the powers of the Civil Court as well as the Revenue Court as all matters pending before the Civil Court stand abated once a notification of initiation of proceedings under the Consolidation Act is issued. Authorities under the Consolidation Act have been conferred powers of the Civil Court to adjudicate upon any matter of title or right to inherit the property etc. Undoubtedly, there are concurrent findings of facts recorded by three authorities under the Consolidation Act after appreciating the entire evidence on record. The authorities have recorded following findings of facts:-

(I) Chandra Deo Singh was having relationship with Smt.Shakuntala for long time;(II) After the death of his wife Sonbarsa in 1945, Chandra Deo Singh had live-in-relationship with Smt. Shakuntala and started living as husband and wife;(III) Chandra Deo Singh started living with Smt. Shakuntala in a different village namely, Murdah in 1960-1961. (IV) Their relationship continued till the death of Chandra Deo Singh on 31.12.1979 and therefore, they lived together as husband and wife for a long period;

(V) The respondents and other four daughters were born out of this relationship between Chandra Deo Singh and Smt. Shakuntala; and (VI) Their relationship as husband and wife had been accepted not only by the Society but also by the family members.

7. The aforesaid concurrent findings of facts recorded by the authorities under the Consolidation Act have been affirmed by the High Court though without having full-fledged appreciation of evidence. The High Court reached the conclusion that findings of facts recorded by three courts below did not require re-appreciation of evidence and further that no interference was required with same in exercise of writ jurisdiction.

8. Shri Mahabir Singh, learned Senior counsel appearing for the appellants persuaded us to have recourse to the unusual procedure submitting that in spite of concurrent findings of facts by courts below, this Court must appreciate the evidence itself for the reason that findings of facts so recorded are perverse. He has placed a very heavy reliance on the documents the appellants have submitted and contended that the said documents are admissible under Section 35 of the Indian Evidence Act, 1872 (hereinafter called the `Evidence Act') and mere reading of those documents would not leave any doubt that the findings recorded by the courts- below are contrary to the evidence on record. In order to substantiate his submission, he has placed reliance on large number of judgments of this Court.

However, before entering into any law, we would like to examine the documents which are so heavily relied by learned Senior counsel. The documents so placed on record are basically School Leaving Certificates, School Registers, Voter Lists and other documents prepared by the authorised persons in exercise of their official duty. Annexure P-1(Colly) is the copy of Electoral Rolls for Legislative Assembly of the three consecutive elections. The particulars of Smt. Shakuntala had been shown therein as under:-

9. These entries are very relevant to determine the controversy regarding the date of birth of the respondents and other family members. As per the first document in Annex.P-1 (Colly), Smt. Shakuntala should have been born in 1941 as she was 34 years of age in 1975. As per the 2nd list she should have been born in 1943 as she was 36 years of age in 1979. Immediately, after one year in 1980 she became 41 years of age and according to this document she should have been born in 1939.

There is so much inconsistency that these documents cannot be read together for the reason that in 1979 if Smt. Shakuntala was 36 years of age, in 1980 she had been shown 41 years of age. So, after expiry of one year, her age had gone up by 5 years.

10. Annexure P-3 has been filed as the copy of the report prepared by the Tahsildar in view of the order passed by the competent court dated 31.7.1984. According to that Asha Devi, daughter of Smt. Shakuntala and sister of respondents was born on 7.7.1951. Therefore, if Smt. Shakuntala as per the first document was born in 1941, question of giving birth to Asha could not arise at the age of 10 years. If we go by the second document of 1979, Smt. Shakuntala was born in 1943 and she could not have given birth to Asha in 1951 at the age of 8 years. According to the third document, Smt. Shakuntala was 41 years of age in 1980. So, at the time of birth of Asha, Smt. Shakuntala was 12 years of age. Same is the position in respect of Savitri, another daughter of Smt. Shakuntala. As per Annexure P-4, School Leaving Certificate, her date of birth has been recorded as 1.9.1949. If this document is taken to be true and age of Smt. Shankutala is taken from Annex.P-1 (Colly), we will have to record a finding of fact that Smt. Shakuntala gave birth to Savitri at the age of 6 years.

11. Now we come to the most material evidence (Annex. P-8) submitted by the appellants in respect of age of Rajni Kant, respondent No.1. The said document is a Certificate for practicing Unani medicine and therein his date of birth has been shown as 15.7.1940. If this document is taken to be true and compared with the document contained in Annexure P-1 (Colly) wherein Smt. Shakuntala had been shown 34 years of age in 1975 and 36 years of age in 1979, it becomes arithmetically clear that Smt. Shakuntala had given birth to him even prior to her own birth.

12. The aforesaid documents placed on record by the appellants and so heavily relied upon by them, if taken into consideration, they would simply lead not only to improbabilities and impossibilities but absurdity also. It is most unfortunate that none of the courts below had analysed these documents in this manner while taking them into consideration and none of the lawyers have thought it proper to bring these most glaring facts to the notice of and of the courts.

13. In State of Bihar & Ors. Vs. Radha Krishna Singh & Ors. AIR 1983 SC 684, this Court dealt with a similar contention and held as under:-

"Admissibility of a document is one thing and its probative value quite another - these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight of its probative value may be nil.. . . . .Where a report is given by a responsible officer, which is based on evidence of witnesses and documents and has "a statutory flavour in that it is given not merely by an administrative officer but under the authority of a Statute, its probative value would indeed be very high so as to be entitled to great weight.The probative value of documents which, however ancient they may be, do not disclose sources of their information or have not achieved sufficient notoriety is precious little."14. Therefore, a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. The aforesaid legal proposition stands fortified by the judgments of this Court in Ram Prasad Sharma Vs. State of Bihar AIR 1970 SC 326; Ram Murti Vs. State of Haryana AIR 1970 SC 1029; Dayaram & Ors. Vs. Dawalatshah & Anr. AIR 1971 SC 681; Harpal Singh & Anr. Vs. State of Himachal Pradesh AIR 1981 SC 361; Ravinder Singh Gorkhi Vs. State of U.P. (2006) 5 SCC 584; Babloo Pasi Vs. State of Jharkhand & Anr. (2008) 13 SCC 133; Desh Raj Vs. Bodh Raj AIR 2008 SC 632; and Ram Suresh Singh Vs. Prabhat Singh @Chhotu Singh & Anr. (2009) 6 SCC 681. In these cases, it has been held that even if the entry was made in an official record by the concerned official in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases.

15. Such entries may be in any public document, i.e. school register, voter list or family register prepared under the Rules and Regulations etc. in force, and may be admissible under Section 35 of the Evidence Act as held in Mohd. Ikram Hussain Vs. The State of U.P. & Ors. AIR 1964 SC 1625; and Santenu Mitra Vs. State of West Bengal AIR 1999 SC 1587.

16. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entry in School Register/School Leaving Certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases.

17. For determining the age of a person, the best evidence is of his/her parents, if it is supported by un-impeachable documents. In case the date of birth depicted in the school register/certificate stands belied by the un-impeachcable evidence of reliable persons andontemporaneous documents like the date of birth register of the Municipal Corporation, Government Hospital/Nursing Home etc, the entry in the school register is to be discarded. (Vide: Brij Mohan Singh Vs. Priya Brat Narain Sinha & Ors. AIR 1965 SC 282; Birad Mal Singhvi Vs. Anand Purohit AIR 1988 SC 1796; Vishnu Vs. State of Maharashtra (2006) 1 SCC 283; and Satpal Singh Vs. State of Haryana JT 2010 (7) SC 500).

18. If a person wants to rely on a particular date of birth and wants to press a document in service, he has to prove its authenticity in terms of Section 32(5) or Sections 50, 51, 59, 60 & 61 etc.of the Evidence Act by examining the person having special means of knowledge, authenticity of date, time etc. mentioned therein. (Vide: Updesh Kumar & Ors. Vs. Prithvi Singh & Ors., (2001) 2 SCC 524; and State of Punjab Vs. Mohinder Singh, AIR 2005 SC 1868).

19. In S. Khushboo Vs. Kanniammal & Anr. (2010) 5 SCC 600, this Court, placing reliance upon its earlier decision in Lata Singh Vs. State of U.P. & Anr. AIR 2006 SC 2522, held that live-in-relationship is permissible only in unmarried major persons of heterogeneous sex.

20. In S.P.S. Balasubramanyam Vs. Suruttayan @ Andali Padayachi & Ors. AIR 1992 SC 756, this Court held that if man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption under Section 114 of the Evidence Act, that they live as husband and wife and the children born to them will not be illegitimate.

22. In view of the above, the kind of material placed by the appellants on record cannot be termed enough to disbelieve the claim of the respondents. The findings of facts recorded by the courts below cannot be disturbed on this material. The appellants' case has been that the respondents were born prior to 1960 i.e. prior to the year Chandra Deo Singh started living with Smt. Shakuntala. As per the Annexure P1 (Colly), Smt. Shakuntala was born near about 1941. If the documents filed by the appellants are taken to be true, we will have to record a finding of fact that Smt. Shakuntala gave birth to her two daughters, namely, Asha and Savitri, when she was only 5-6 years of age and in case, the Certificate of Rajni Kant-respondent no.1, contained in Annexure P8 is taken to be true and is considered in the light of the documents contained in Annexure P1 (Colly), it could be arithmetically clear that Smt. Shakuntala had given birth to Rajni Kant, respondent No. 1 on 15.7.1940, i.e., even prior to her own birth in 1941. If all the said documents are accepted, they would simply lead not only to improbabilities and impossibilities but absurdity also. It is most unfortunate that none of the courts below had analysed documents in correct perspective. The live-in- relationship if continued for such a long time, cannot be termed in as "walk in and walk out" relationship and there is a presumption of marriage between them which the appellants failed to rebut.

23. In view of the above, the appeal does not present special facts and circumstances which may warrant further re-appreciation of the evidence as the appeal is based on totally unreliable/contradicting documents and not worth placing any reliance. It is accordingly dismissed. No cost.

Held that when a man and a woman have cohabited for a long period of time they will be considered to be married unless there is an evidence to the contrary .This judgement illustrates the courts attempt to treat a live in similarly to marriage.

J U D G M E N T Dr. Arijit Pasayat,, J.

1. Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Madhya Pradesh High Court at Jabalpur. The appeal under Section 100 of the Code of Civil Procedure, 1908 (in short the Code) was directed against the judgment and decree dated 29.10.1988 passed by learned IInd Additional District Judge, Satna in Civil appeal No. 138-A of 1987. The appeal before the First appellate court was directed against the judgment and decree dated 26.4.1985 passed by learned Second Civil Judge Class I, Satna in Civil Suit No. 52- A of 1982. The suit was filed by the respondents herein for nullifying and setting aside sale deed dated 10.9.1980 and also for permanent injunction of land at Sl. Nos. 4009, 4010, 4011 and 4014. The sale deed dated 10.9.1980 was in respect of lands at Sl. Nos. 3853, 3993, 4002, 4003, 4004, 4009. 4010, 4014, 4015 and 4021 of Mauza Nayagaon, Tehsil Raghurajnagar, District Satna. According to them the disputed property is the joint ancestral property of Radhika Singh, Sunder Singh and the husband of plaintiff No.1, Dadau Singh who was the father of the other two plaintiffs - Smt. Rani and Smt. Butan. Vansh Gopal had three sons, Radhika Singh, Sunder Singh and Dadau Singh. Sunder died without any legal heir. No partition had taken place between Radhika and Sunder and Radhika, Sunder and Dadau all used to do cultivation jointly. As Radhika and Sunder died without leaving legal heirs, the plaintiffs became the sole owners of the property. Loli, the original defendant No.1 is the wife of Mangal Kachhi and his daughter Tulsa Bai, the present appellant was born to Loli and Mangal Kachhi. After the birth of her daughter Tulsabai, deceased Radhika Singh, kept defendant No.1 as a mistress in his house and left for somewhere else taking her along and came back after many years. She gave birth to three daughters namely Vidya, Badaniya and Rajaniya. Defendant No.1 was a Kachhia by caste and was also the cognitive of deceased Radhika, so she had no legal rights in the property. After the death of Radhika, Defendant No.1 was residing with Badri Prasad Pandey. Badri Prasad got sale deed executed in favour of defendant No.1 of disputed property with intention to usurping the land. Plaintiffs are in possession. They came to know about the transaction when defendant Nos.2 to 4 submitted an application for transfer of land in their names and then it came to light that defendant No.1 had no title over the land and the land was in possession of plaintiffs 1 to 3. On 17.12.1984 plaintiffs got the information that the defendant Nos.2 and 3 have got their names mutated in respect of certain lands, therefore the suit was filed. In the written statement filed the defendants took the stand that the family tree indicated by the plaintiff was correct. Out of the land 12 acres owned by the family of Durghatiya, the plaintiff No.1 had sold her share of land. About 30 years back partition has taken place between Dadau and Sunder. Dadau had separated after taking his share. He got the land in certain villages. Radhika and Sunder used to live jointly and used to do cultivation over the land which they got in partition. They died while living jointly in the year 1970. Plaintiff-Durghatia and Radhika had sold their land in the capacity of owners during their lifetime. Sunder did not marry and had no issue. Defendant No.1 is the widow of Radhika. They were blessed with five daughters and one son, out of which one son and one daughter died. The eldest daughter Tulsa and the younger daughter were given in marriage by Radhika. Plaintiff No.1 used to regard defendant No.1 as her jethani. Radhika and defendant No.1 lived together for thirty years as husband and wife and, therefore, she had legitimate claim over the property as his wife. It was also disputed that defendant No.1 was living with defendant Nos.2 to 5. Defendant No.1 had sold the lands to defendant Nos.2, 3 and 4 had also given possession. Defendant No.1 had taken a debt on the marriage of her son and for that purpose she sold the land. She claimed that she had right to sell the land and therefore no question of having any illegal possession. Four issues were framed by the trial court and the important and vital issue was framed as issue No.2 which read as follows :

Whether the defendant No.1 was the wife of Radhika Singh?

The question was answered in the affirmative. After referring to the evidence of the witnesses examined by the plaintiffs as well as the defendants, the trial court held that there was no merit in the suit and accordingly it was dismissed. The judgment and decree were questioned in appeal before the first appellate court.

2. As noted above, the first appellate court allowed the appeal. The trial court noted that there was a presumption of valid marriage, as for decades Radhika and plaintiff No.1 lived together, their daughters were given in marriage by Radhika. Loli the defendant No.1 was earlier married to Mangala Kochhi and after his death she married Radhika. It is to be noted that the stand of the plaintiffs was that Loli married Radhika during the lifetime of Mangal Katchhi. The trial court rejected this plea. The first appellate court observed that Loli started living with Radhika during the life time of Mangal Katchhi, so the presumption of valid marriage was not there. The judgment and decree of the first appellate court was challenged before the High Court. The High Court formulated the following questions for adjudication:

Whether in the facts and circumstances of the case, the first appellate Court erred in law in finding that Mst. Lollibai was not the legally married wife of Radhika Singh?

3. After discussing the respective stand of the parties, the High Court came to a somewhat peculiar finding. It held that the findings recorded by the appellate court may be erroneous, but it does not appear to be perverse.

4. It is to be noted that the first appellate court without any evidence or material came to an abrupt conclusion that the defendant No.1 Loli started living with Radhika during the lifetime of her husband. There is no discussion with reference to any material as to the basis for such a conclusion.

5. Some of the conclusions of the trial court in this regard are relevant. In paragraph 16 of the judgment it was noted as follows:

In the content of the aforesaid judgment, now we have to examine this that whether we have sufficient basis to make a presumption of legal marriage of Lolli and Radhika Singh. In this connection, plaintiff witness Visheshar had admitted in para 9 of his statement that there were four daughters and one son born of Lolli and Radhika Singh. The eldest daughter of Lolli is Tulsi. Rani was born to Lolli after 2- 3 years of her arriving in the village. Three of the daughters of Lolli was married off by Radhika Singh and she had also contributed.

6. Again at para 18 it was observed as follows:

Witness Devdhari has also admitted in his statement that after 2-3 years of the birth of first born Bhaiyalal Mangal Kachhi had died. Lolli used to work as a labourer. She also used to be labourer with Radhika Singh. Radhika Singh had retained Lolli as his wife. The daughters of Lolli were married off by Radhika Singh. Ram Milan Singh had admitted in his statement that all these four daughters were alive. They were born of Radhika and Lolli. The daughters which were born of Radhika Singh, their Kanyadan was also performed by Radhika Singh. He has also admitted this in his statement that Radhika Singh had married off his daughters as Vaishyas and Thakurs married off their daughters. He had attended the marriage.

7. In para 24 it was observed as follows:

This has also been argued by learned counsel of the plaintiff that even if this is accepted that Lolli and Radhika Singh stayed as husband and wife for many days and they were blessed with children even then it cannot be presumed that Lolli is legitimate wife of Radhika Singh. Because Lolli moved in with Radhika Singh then her husband had been alive. His former husband Mangal Kachhi had been alive, till she got divorce by Mangal Kachhi till then Lolli could not have entered in second marriage with Radhika Singh. I am no in agreement with this argument of the learned counsel of the plaintiff because the evidence, which has been adduced from the side of the plaintiff and defendants, from that it becomes clear, that after Bhaiyalal was born to Lolli from mangal, mangal had thrown Lolli out of the house. Then Lolli worked as a casual labourer for some time and meanwhile Mangal had died. Thereafter Radhika Singh adopted her as his wife. This fact has been admitted by Devdhari in para 4 of his statement that Lolli used to frequent village Bointa from Bandhi to work as a labourer, thereafter she was adopted.

8. In contrast, the first appellate court held that Bhaiyalal (DW2) who was born to Lolli and Mangal, had stated that he was very young when his father died and when he was young his mother had left. From that it was inferred that during the lifetime of Mangal Katchhi, Lolli left the Mangal and was living with Radhika. This conclusion is clearly contrary to the evidence on record. A bare reading of the evidence of DW 2 shows that he had clearly stated that Mangal was not alive when Lolli came and stayed with Radhika.

9. At this juncture reference may be made to the Section 114 of the Indian Evidence Act, 1872 (in short the Evidence Act). The provision refers to common course of natural events, human conduct and private business. The court may presume the existence of any fact which it thinks likely to have occurred. Reading the provisions of Sections 50 and 114 of the Evidence Act together, it is clear that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case.

10. A number of judicial pronouncements have been made on this aspect of the matter. The Privy Council, on two occasions, considered the scope of the presumption that could be drawn as to the relationship of marriage between two persons living together. In first of them i.e. A. Dinohamy v. W.L. Blahamy [AIR 1927 P.C. 185] their Lordships of the Privy Council laid down the general proposition that:

Where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary be clearly proved that they were living together in consequence of a valid marriage, and not in a state of concubinage.

11. In Mohabhat Ali v. Md. Ibrahim Khan [AIR 1929 PC 135] their Lordships of the Privy Council once again laid down that:

The law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years.

12. It was held that such a presumption could be drawn under Section 114 of the Evidence Act.

13. Where the partners lived together for long spell as husband and wife there would be presumption in favour of wedlock. The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon bastardy. (See: Badri Prasad v. Dy. Director of Consolidation and Ors. [AIR 1978 SC 1557].

14. This court in Gokal Chand v. Parvin Kumari [AIR 1952 SC 231] observed that continuous co-habitation of woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which maybe drawn from long co-habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them.

15. As noted above, the continuous living together of Lolli and Radhika has been established. In fact the evidence of the witnesses examined by the plaintiff also established this fact. The conclusion of the first appellate court that they were living together when Mangal was alive has not been established. The evidence on record clearly shows that Lolli and Radhika were living together after the death of Mangal.

16. Above being the position, the appeal deserves to be allowed which we direct. The judgment and decree of the first appellate court and the High Court are set aside and those of the trial court stand restored.

This writ petition under Article 32 of the Constitution of India has been filed with a prayer for issuing a writ of certiorari and /or mandamus for quashing the Sessions Trial No. 1201 of 2001 under sections 366 and 368 of the Indian Penal Code arising out of FIR No. 336 of 2000 registered at Police Station Sarojini Nagar, Lucknow and pending in the Fast Track Court V, Lucknow.

The facts of the case are as under:

The petitioner is a young woman now aged about 27 years who is a graduate and at the relevant time was pursuing her Masters course in Hindi in the Lucknow University. Due to the sudden death of her parents she started living with her brother Ajay Pratap Singh at LDA Colony, Kanpur Road, Lucknow, where she did her intermediate in 1997 and graduation in 2000.

It is alleged by the petitioner that on 2.11.2000 she left her brother's house of her own free will and got married at Arya Samaj Mandir, Delhi to one Bramha Nand Gupta who has business in Delhi and other places and they have a child out of this wedlock.

Thereafter on 4.11.2000, the petitioner's brother lodged a missing person report at Sarojini Nagar Police Station, Lucknow and consequently the police arrested two sisters of the petitioner's husband along with the husband of one of the sisters and the cousin of the petitioner's husband. The persons arrested were Mamta Gupta, Sangita Gupta (sisters of Brahma Nand Gupta), as well as Rakesh Gupta (husband of Mamta Gupta) and Kallu Gupta cousin of the petitioner's husband. Mamta was in jail with her one month old child.

It is further alleged that the petitioner's brothers Ajay Pratap Singh, Shashi Pratap Singh and Anand Pratap Singh were furious because the petitioner underwent an inter-caste marriage, and hence they went to the petitioner's husband's paternal residence and vehemently beat up her husband's mother and uncle, threw the luggage, furniture, utensils, etc. from the house and locked it with their lock. One brother of the petitioner's husband was allegedly locked in a room by the petitioner's brothers for four or five days without meals and water. The petitioner's brothers also allegedly cut away the harvest crops of the agricultural field of the petitioner's husband and sold it, and they also took forcible possession of the field. They also lodged a false police report alleging kidnapping of the petitioner against her husband and his relatives at Police Station Sarojini Nagar, Lucknow, due to which the sisters of the petitioner's husband, and the husband of one of the sisters, were arrested and detained in Lucknow jail. The petitioner's brothers also illegally took possession of the shop of the petitioner's husband. The petitioner's husband has a shop at Badan Singh Market, Rangpuri in the name of Gupta Helmet Shop whose possession was forcibly taken over by her brothers.

It is further alleged that the petitioner's brothers are threatening to kill the petitioner's husband and his relatives, and kidnap and kill her also. The Gupta family members are afraid of going to Lucknow out of fear of violence by the petitioner's brothers, who are of a criminal bent.

It is alleged that the petitioner's husband and relatives have been falsely framed by her brothers Shashi Pratap Singh, Ajay Pratap Singh and Anand Pratap Singh who were furious because of the inter-caste marriage of the petitioner with Bramha Nand Gupta. Mamta Gupta, Rakesh Gupta and Sangita Gupta were arrested on 17.12.2000, whereas Kallu Gupta was arrested on 02.12.2000. It is alleged that the three relatives of the petitioner's husband were not granted bail for a long time and their lives got ruined though there was no case against them that they instigated the petitioner to get married to Bramha Nand Gupta. It is also alleged that the petitioner ran from pillar to post to save her husband and relatives from harassment and she then approached the Rajasthan Women Commission, Jaipur, as she was staying in Jaipur almost in hiding apprehending danger to her and her husband's life. The Commission recorded her statement on 13.3.2001 and the same was forwarded to the Superintendent of Police (City), Lucknow for necessary action. The President of the Rajasthan State Women Commission also wrote a letter to the National Human Rights Commission on 13.3.2001 requesting the Commission and the Chief Secretary, Government of Uttar Pradesh, to intervene in the matter.

A final report was submitted by the SHO, Police Station Sarojini Nagar, Lucknow before the learned Judicial Magistrate inter-alia mentioning that no offence was committed by any of the accused persons and consequently the learned Sessions Judge, Lucknow enlarged the accused on bail on furnishing a personal bond on 16.5.2001 by observing that neither was there any offence nor were the accused involved in any offence. The Superintendent of Police, Lucknow informed the National Human Rights Commission that all the accused persons have been released on bail on 17.5.2001.

Thereafter the Investigating Officer recorded the statement of the petitioner Lata Gupta @ Lata Singh on 28.5.2001 and for this purpose armed security was provided to her. The learned Chief Judicial Magistrate, Lucknow recorded the statement of the petitioner under section 164 Cr.P.C. on 29.5.2001. In that statement the petitioner stated that she married Bramha Nand Gupta of her own free will. Despite this statement, the learned Chief Judicial Magistrate, Lucknow passed the committal order on 5.10.2001 ignoring the fact that the Police had already filed a final report in the matter.

It appears that a protest petition was filed against the final report of the Police alleging that the petitioner was not mentally fit. However, the petitioner was medically examined by the Board of Doctors of Psychiatric Centre, Jaipur, who have stated that the petitioner was not suffering from any type of mental illness.

The Fast Track Court, Lucknow before whom the case was pending issued non-bailable warrants against all the four accused, and against the order of the Fast Track Court, the accused filed a petition under section 482 Cr.P.C. in the Allahabad High Court (Lucknow Bench) which was registered as Crl. Misc. No. 520/2003. The High Court directed the accused to appear before the Sessions Judge who would himself scrutinize whether the accused committed any offence or not. The matter is still pending.

The petitioner alleged that she cannot visit Lucknow as she apprehends danger to her life and the lives of her husband and small child. She has further alleged that her brothers have assaulted, humiliated and irreparably harmed the entire family members of her husband Bramha Nand Gupta and their properties, and even the remote relatives were not spared and were threatened to be killed. Their properties including the house and agricultural lands and shops were forcibly taken over by the brothers of the petitioner and the lives of the petitioner and her husband are in constant danger as her brothers have been threatening them.

We have considered the above facts and have heard learned counsel for the petitioner and the learned counsel for the State Government.

This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was at all relevant times a major. Hence she is free to marry anyone she likes or live with anyone she likes. There is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law. Hence, we cannot see what offence was committed by the petitioner, her husband or her husband's relatives.

We are of the opinion that no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court as well as of the administrative machinery at the instance of the petitioner's brothers who were only furious because the petitioner married outside her caste. We are distressed to note that instead of taking action against the petitioner's brothers for their unlawful and high-handed acts (details of which have been set out above) the police has instead proceeded against the petitioner's husband and his relatives.

Since several such instances are coming to our knowledge of harassment, threats and violence against young men and women who marry outside their caste, we feel it necessary to make some general comments on the matter. The nation is passing through a crucial transitional period in our history, and this Court cannot remain silent in matters of great public concern, such as the present one.

The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter- religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law. We sometimes hear of `honour' killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism.

In the circumstances, the writ petition is allowed. The proceedings in Sessions Trial No. 1201/2001 titled State of U.P. vs. Sangita Gupta & Ors. arising out of FIR No. 336/2000 registered at Police Station Sarojini Nagar, Lucknow and pending in the Fast Track Court V, Lucknow are quashed. The warrants against the accused are also quashed. The police at all the concerned places should ensure that neither the petitioner nor her husband nor any relatives of the petitioner's husband are harassed or threatened nor any acts of violence are committed against them. If anybody is found doing so, he should be proceeded against sternly in accordance with law, by the authorities concerned.

We further direct that in view of the allegations in the petition (set out above) criminal proceedings shall be instituted forthwith by the concerned authorities against the petitioner's brothers and others involved in accordance with law. Petition allowed.

1. This appeal has been preferred against the Judgment and Order of the High Court of Judicature at Madras dated 10th July, 2001 allowing the appeal filed by the respondent No.1 against the judgment and decree of the Ist Appellate Court dated 17.9.1986 affirming the judgment and decree of the Trial Court dated 7.3.1977 in O.S. No.269/1975 instituted by the predecessor-in-interest of the present appellants for claiming the property in dispute and denying the share to the respondent Nos. 2 to 5 or their predecessor-in-interest.

2. The facts and circumstances giving rise to the present case are that the predecessor-in-interest of the present appellants, Peria Mariammal instituted a suit, being O.S. No. 269 of 1975 against the respondents and their predecessor-in- interest claiming the share of her brother Muthu Reddiar, on the ground that he died unmarried and intestate and that Smt. Rengammal, the defendant No. 1 in the suit was a legally wedded wife of one Alagarsami Reddiar, who was still alive, therefore, her claim that she had live-in-relationship with plaintiff's brother Muthu Reddiar and had two children from him, had to be ignored. The defendants/respondents contested the suit denying the marriage between defendant No. 1 and the said Alagarsami Reddiar. The Trial Court decreed the suit vide Judgment and decree dated 7th March, 1977 recording the finding that Rengammal, defendant No.1 in the suit was wife of Alagarsami Reddiar who was alive at the 2

time of filing the suit. There had been no legal separation between them. Therefore, the question of live-in-relationship of Smt. Rengammal with Muthu Reddiar could not arise.

3. Being aggrieved, the defendants therein filed the First Appeal. The respondent No. 1 herein, Vijaya Renganathan, purchased the suit property in 1978 i.e. during the pendency of the First Appeal for a sum of about Rs. 10,000/- and got himself impleaded in the appeal as a party. The First Appeal was dismissed by the Appellate Court vide judgment and decree dated 17th September, 1986. The said purchaser, respondent No.1, alone filed the Second Appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter called as `CPC') before the High Court which has been allowed. Hence, this appeal.

4. Learned counsel for the appellants has submitted that Smt. Rengammal, original defendant No.1 was legally wedded wife of Alagarsami and he was still alive. Therefore, the question of presumption of marriage for having live-in- 3

relationship with Muthu Reddiar could not arise. In such eventuality, Muthu Reddiar could be liable for offence of Adultery under Section 497 of Indian Penal Code, 1860 (hereinafter called as `IPC'). More so, even if live-in-relationship is admitted and it is further admitted that the two children were born due to that live-in-relationship, the said children could not inherit the coparcenery property and in absence of any finding recorded by any Court below that the suit land was self-acquired property of Muthu Reddiar, the judgment of the High Court is liable to be set aside. At the most, the respondent No. 1 herein can claim recovery of the sale consideration from his vendors as the possession is still with the present appellants.

5. On the contrary, learned counsel for the respondent No.1 has vehemently opposed the submission of the learned counsel for the appellants, contending that the High Court after re-appreciating the evidence on record came to the conclusion that the factum of marriage of Smt. Rengammal with Alagarsami Reddiar could not be proved by the appellants 4

herein and because of their live-in-relationship, a presumption of marriage between Muthu Reddiar and Smt. Rengammal could be drawn and, therefore, in view of the provisions of Section 16 of the Hindu Marriage Act, 1955 (hereinafter called as, &quot;the Act&quot;), the two children born out of that live-in- relationship were entitled to inherit the property of Muthu Reddiar and thus, the appeal is liable to be dismissed.

6. We have considered the rival submissions of the learned counsel for the parties and perused the record.

7. The Trial Court as well as the First Appellate Court have recorded a categorical finding of fact that Smt. Rengammal, defendant No.1 had been married to Alagarsami Reddiar who was alive on the date of institution of the suit and, therefore, the question of marriage by presumption between Smt. Rengammal and Muthu Reddiar would not arise and for determining the same all the material on record had been taken into consideration including the statement of 5

Seethammal, DW1 along with all other defence witnesses and the documents, particularly, Exts.B14, B18, B19 and B2.

8. However, the High Court framed two substantial questions of law, namely:

(a) Whether on the admitted long cohabitation of the First defendant and Muthu Reddiar, a legal presumption of a lawful wedlock is not established; and

(b) Whether the specific case of prior and subsisting marriage between defendant and Alagarsami Reddiar set up by Plaintiff is established as required by law and she could have a preferential claim over defendants 1 to 3?

9. While determining the substantial question (b) the High Court only considered the statement of Seethammal, DW1, the step mother of Muthu Reddiar and did not take into consideration the evidence of plaintiff's witnesses which had been relied upon by the courts below, particularly, 6

Kumarasamy PW2 and Kandasamy PW5 and re-appreciated the documentary evidence. Therefore, the question does arise as to whether such a course is permissible while deciding the Second Appeal under Section 100 CPC.

10. In Sheel Chand Vs. Prakash Chand, AIR 1998 SC 3063, this Court held that question of re-appreciation of evidence and framing the substantial question as to whether the findings relating to factual matrix by the court below could vitiate due to irrelevant consideration and not under law, being question of fact cannot be framed.

11. In Rajappa Hanamantha Ranoji Vs. Mahadev Channabasappa &amp; Ors. AIR 2000 SC 2108, this Court held that it is not permissible for the High Court to decide the Second Appeal by re-appreciating the evidence as if it was deciding the First Appeal unless it comes to the conclusion that the findings recorded by the court below were perverse. 7

12. In Kulwant Kaur &amp; Ors. Vs. Gurdial Singh Mann (dead) by L.Rs. AIR 2001 SC 1273, this Court held that the question whether Lower Court's finding is perverse may come within the ambit of substantial question of law. However, there must be a clear finding in the judgment of the High Court as to perversity in order to show compliance with provisions of Section 100 CPC. Thus, this Court rejected the proposition that scrutiny of evidence is totally prohibited in Second Appeal.

13. Thus, it is evident that High Court can interfere with the finding of fact while deciding the Second Appeal provided the findings recorded by the Courts below are perverse.

14. In H.B. Gandhi, Excise &amp; Taxation Officer-cum- Assessing Authority, Karnal &amp; Ors. Vs. M/s. Gopi Nath &amp; Sons &amp; Ors. 1992 Supp.(2) SCC 312, this Court held that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the 8

vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in law. In M/s. Triveni Rubber &amp; Plastics Vs. Collector of Central Excise, Cochin AIR 1994 SC 1341, this Court held that the order suffers from perversity in case some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration or where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings. In Kuldeep Singh Vs. Commissioner of Police &amp; Ors. (1999) 2 SCC 10, this Court held that if a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which cannot be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with. In Gaya Din (dead) thr. Lrs. &amp; Ors. Vs. Hanuman Prasad (dead) thr. Lrs. &amp; Ors. AIR 2001 SC 386, it has been held that order of an authority is perverse in the sense that 9

the order is not supported by the evidence brought on record or it is against the law or it suffers from the vice of procedural irregularity. In Rajinder Kumar Kindra Vs. Delhi Administration, thr. Secretary (Labour) &amp; Ors. AIR 1984 SC 1805, this Court while dealing with a case of disciplinary proceedings against an employee considered the issue and held as under:

&quot;17. It is equally well-settled that where a quasi- judicial tribunal or arbitrator records findings based on no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated. ....The High Court, in our opinion, was clearly in error in declining to examine the contention that the findings were perverse on the short, specious and wholly untenable ground that the matter depends on appraisal of evidence.&quot;

15. In the instant case, the Courts below had appreciated the entire evidence and came to the conclusion that Smt. Rengammal, defendant no.1 was legally wedded wife of Alagarsami Reddiar and thus did not presume her marriage with Muthu Reddiar. The High Court without making any 10

reference to the evidence of the plaintiff's witnesses, particularly, Kumarasamy-P.W.2 and Kandasamy-PW.5 reversed the finding of fact and reached the conclusion that merely live-in-relationship between the said two parties would lead the presumption of marriage between them. The High Court erred in not appreciating that the judgments of the Courts below could be based on another presumption provided under Section 112 of the Evidence Act, 1872 (hereinafter called as the `Evidence Act').

16. Section 112 of the Evidence Act provides for a presumption of a child being legitimate and such a presumption can only be displaced by a strong preponderance of evidence and not merely by a balance of probabilities as the law has to live in favour of innocent child from being bastardised. In the instant case, as the proof of non-access between Rengammal and Alagarsami had never been pleaded what to talk of proving the same, the matter has not been examined by the High Court in correct perspective. It is settled legal proposition that proof of non-access between the 11

17. The High Court has decided the issue regarding the factum of marriage between Alagarsami and Rengammal only placing reliance upon the statement of Smt. Seethammal, DW1, step mother of Muthu Reddiar who had been disbelieved by the Courts below by giving cogent reasons and taking note of the fact that she had arranged their marriage spending a sum of Rs.10 only. The High Court has also reappreciated the documentary evidence and took a view contrary to the view 12

taken by the court's below. It was not appropriate for the High Court to re-appreciate the evidence in Second Appeal as no substantial question of law involved therein. Both the Courts below found that Rengammal was legally wedded wife of Alagarsami. The Courts below had placed very heavy reliance upon the witnesses examined by the appellant/plaintiff particularly, Kumarasamy- PW 2 and Kandasamy- PW 5.

18. In view of the fact that the High Court did not even take note of the deposition of the plaintiff's witnesses, findings recorded by the High Court itself become perverse and thus liable to be set aside.

19. Be that as it may, Section 5(1) of the Act lays down conditions for a Hindu marriage. It provides that marriage may be solemnized between any two Hindus if neither of them is a spouse living at the time of marriage. Section 11 provides that any marriage which is in contravention of Section 5(1) of the Act, would be void. Section 16 of the Act stood amended 13

vide Amendment Act of 1976 and the amended provisions read as under:-

&quot;Legitimacy of children of void and voidable marriages - (1) Notwithstanding that a marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate........ (2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub- section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.&quot; (Emphasis added)

20. Thus, it is evident that Section 16 of the Act intends to bring about social reforms, conferment of social status of legitimacy on a group of children, otherwise treated as illegitimate, as its prime object.

14

21. In S.P.S. Balasubramanyam Vs. Suruttayan @ Andali Padayachi &amp; Ors. AIR 1992 SC 756, this Court held that if man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate.

22. In S. Khushboo Vs. Kanniammal &amp; Anr. JT 2010 (4) SC 478, this Court, placing reliance upon its earlier decision in Lata Singh Vs. State of U.P. &amp; Anr. AIR 2006 SC 2522, held that live-in-relationship is permissible only in unmarried major persons of heterogeneous sex. In case, one of the said persons is married, man may be guilty of offence of adultery and it would amount to an offence under Section 497 IPC.

23. In Smt. P.E.K. Kalliani Amma &amp; Ors. Vs. K. Devi &amp; Ors. AIR 1996 SC 1963, this Court held that Section 16 of the Act is not ultra vires of the Constitution of India. In view of the legal fiction contained in Section 16, the illegitimate 15

children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.

24. In Rameshwari Devi Vs. State of Bihar &amp; Ors. AIR 2000 SC 735, this Court dealt with a case wherein after the death of a Government employee, children born illegitimately by the woman, who had been living with the said employee, claimed the share in pension/gratuity and other death-cum-retiral benefits along with children born out of a legal wedlock. This Court held that under Section 16 of the Act, children of void marriage are legitimate. As the employee, a Hindu, died intestate, the children of the deceased employee born out of void marriage were entitled to share in the family pension, death-cum-retiral benefits and gratuity.

rule of fiction in Section 16 of the Act, the illegitimate children have become entitled to get share only in self-acquired properties of their parents. The Court held as under :- &quot;4...........Under the ordinary law, a child for being treated as legitimate must be born in lawful wedlock. If the marriage itself is void on account of contravention of the statutory prescriptions, any child born of such marriage would have the effect, per se, or on being so declared or annulled, as the case may be, of bastardising the children born of the parties to such marriage. Polygamy, which was

permissible and widely prevalent among the Hindus in the past and considered to have evil effects on society, came to be put an end to by the mandate of the Parliament in enacting the Hindu Marriage Act, 1955. The legitimate status of the children which depended very much upon the marriage between their

parents being valid or void, thus turned on the act of parents over which the innocent child had no hold or control. But for no fault of it, the innocent baby had to suffer a permanent set back in life and in the eyes of society by being treated as illegitimate. A laudable and noble act of the legislature indeed in enacting Section 16 to put an end to a great social evil. At the same time, Section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable chose also to confine its application, so far as succession orinheritance by such children are concerned to the properties of the parents only.

5. So far as Section 16 of the Act is concerned, though it was enacted to legitimise children, who would otherwise suffer by becoming

illegitimate, at the same time it expressly provide in Sub-section (3) by engrafting a provision with a non-obstante clause stipulating specifically that nothing contained in Sub-section (1) or Sub-section (2) shall be construed as conferring upon any child of a marriage, which is null and void or which is annulled by a decree of nullity under Section 12, `any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of

possessing or acquiring any such rights by reason of this not being the legitimate child of his parents'. In the light of such an express mandate of the legislature itself there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any

presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in Sub-section (3) of Section 16 of the Act but also would attempt to court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself. Consequently, we are unable to countenance the submissions on behalf of the appellants.......&quot;

26. This view has been approved and followed by this Court in Neelamma and others Vs. Sarojamma and others (2006) 9 SCC 612.

27. Thus, it is evident that in such a fact-situation, a child born of void or voidable marriage is not entitled to claim inheritance in ancestral coparcenery property but is entitled only to claim share in self acquired properties, if any.

28. In the instant case, respondents had not pleaded at any stage that the Suit land was a self acquired property of Muthu Reddiar. It is evident from the record that Muthu Reddiar did not partition his joint family properties and died issueless and intestate in 1974. Therefore, the question of inheritance of coparcenery property by the illegitimate children, who were born out of the live-in-relationship, could not arise. Thus, the judgment of the High Court is liable to be set aside only on this sole ground.

29. In view of the above, the appeal succeeds and is allowed. The judgment and order of the High Court dated 10th July, 2001 is hereby set aside. No order as to cost.

30. However, it shall be open to R.5 to resort to legal proceedings, permissible in law for recovery of the sale consideration from his vendors as he has purchased the property in lis pendis and the appellants are still in possession of the suit property.

ORAL JUDGMENT:. The submissions of the learned counsel appearing for the parties were heard on the last date. Following questions arise for consideration in this petition: (i) Whether an order passed on an application made under section 23 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "the said Act")

is appelable under section 29 of the said Act?

(ii) Whether an appeal will lie under section 29 of the said Act against every order passed by

the learned Magistrate in proceedings initiated on the basis of an application made under : 2 :

section 12 of the said Act?

(iii) What is the scope of an appeal under section 29 of the said Act?

Apart from aforesaid questions, there are factual questions arising in this petition.

2. The 2nd respondent is the wife of the petitioner. The marriage between the petitioner and the 2nd respondent was solemnised on 22nd April 2004. According to the case made out by the 2nd respondent, after marriage, she stayed alongwith the petitioner in Flat No.B-10, Rambaug Colony, Kothrud, Pune. As the 2nd respondent found it inconvenient to attend to her duty by residing at the said premises, a flat being Flat No.B-13, Yashganga Residency, near Trimurti Hospital, Dhayari Phata, Pune was jointly acquired by the petitioner and the 2nd respondent. It is this flat which is the subject matter of dispute in this petition which is hereinafter referred to as "the said flat". It appears that there was a matrimonial dispute between the petitioner and 2nd respondent. The 2nd respondent filed an application under section 12 of the said Act before the learned Judicial Magistrate First Class, Court No.4, Pune seeking protection order under section 18 of the : 3 :

said Act. The prayer in the said application is that the petitioner should be prohibited from committing any act of domestic violence and also from causing any kind of alienation of the said flat and from causing any disposition of the said flat or any encumbrance thereto and from preventing the 2nd respondent from having access to and fro to the said flat and enjoying the said flat as a residence. A prayer was also made for restraining the petitioner from preventing the enjoyment of the 2nd respondent of the said flat as a shared household. A relief was also sought under section 19 of the said Act.

3. An application was made by the 2nd respondent in the main application under section 12 of the said Act praying for grant of interim relief in respect of said flat. The said application was opposed by the petitioner by filing a reply. The petitioner filed a combined reply to the main application as well as to the application for interim relief. The said application was partly allowed by the learned Magistrate by order dated 01st March 2007. The prayer made for interim relief as regards residential accommodation was rejected and a limited relief was granted preventing the petitioner from alienating the stridhan in his possession. The 2nd respondent preferred an appeal under section 29 of the said Act. By impugned judgment and order dated 15th October 2007, the appeal was partly allowed by the Sessions Court. The relevant part of the operative order read thus:

No.B-3, Yashganga Residency, Near Trimurti hospital, Dhayari Phata, Pune, during the pendency of the criminal proceeding.

[4] The respondent No.1/opponent-husband is restrained from dispossessing or disturbing the possession of the appellant/applicant-wife from the share household i.e- the said flat, during the pendency of the main proceeding.

[5] The respondent No.1/opponent-husband is further restrained from creating any encumbrances or third party interest in the said

flat during the pendency of the main proceeding.

[6] The officer in charge of the nearest police station within the jurisdiction of which

the said flat lies is directed to give protection and assistance to the applicant-wife while implementing this order."

4. The learned counsel appearing for the petitioner has taken me through applications filed by the 2nd respondent and the orders passed by the learned Magistrate as well as by the Sessions Court. He pointed out that in the reply filed by the petitioner there was a categorical assertion that the petitioner never denied the residential accommodation of the said flat to the 2nd respondent and therefore there was no occasion to grant any interim relief in respect of said flat. The learned counsel for the petitioner pointed out that though the said flat is purchased in the joint name of the petitioner and the 2nd respondent, the loan taken by them for acquiring the said flat was being repaid only by the petitioner and there is no contribution forthcoming from the 2nd respondent for repayment of the loan. Without prejudice to his rights and contentions, he submitted that if the 2nd respondent gives consent for selling the said flat, another accommodation can be made available elsewhere to the 2nd respondent.

5. He submitted that no appeal will lie under section 29 of the said Act against an interlocutory order and hence the appeal preferred by the 2nd respondent was not maintainable. He has placed reliance on several decisions of this Court and Apex Court in : 6 :

support of his submissions. His submission was that only against a final order passed by the learned Magistrate on application under section 12 of the said Act, an appeal will lie under section 29 and the order dated 01st March 2007 passed by the learned Magistrate being purely an interlocutory in nature, the appeal itself was not maintainable. In any event, he submitted that there was no occasion to grant interim relief in respect of the said flat and no case was made out for granting any interim protection.

6. The learned counsel appearing for the 2nd respondent submitted that under section 29 of the said Act, an appeal was maintainable against every order passed under the provisions of the said Act. He submitted that an appeal will lie even against an interim order passed under section 23 of the said Act. He submitted that interim order passed under section 23 cannot be treated as purely an interlocutory order and infact such orders are orders of moment affecting the rights of the parties. He submitted that the decisions relied upon by the counsel for petitioner and especially the decision of the Division Bench of this Court under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 will have no application as the scheme of the said Act is totally different. He pointed out the objects and reasons of : 7 :

the said Act. He invited my attention to the scheme of the entire Act and submitted that no interference was called for. He also stated that the order impugned has been already acted upon.

7. I have carefully considered the submissions. The object of the said Act is to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.

8. Section 3 of the said Act defines domestic violence. The definition of domestic violence is very wide and apart from other aspects it encompasses within itself physical abuse, verbal abuse, sexual abuse, emotional abuse and economic abuse. Section 12 forming part of Chapter IV of the said Act provides for an application being made by an aggrieved person or a protection officer or any other person on behalf of aggrieved person. The application is maintainable before a Judicial Magistrate First Class or a Metropolitan Magistrate as the case may be. Aggrieved person as defined by clause (a) of section 2 means any woman who is or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. : 8 :

Sub-section 3 of section 12 provides that every application under sub- section 1 shall be in such form and contain such particulars as may be prescribed. The Protection of Women From Domestic Violence Rules, 2006 (hereinafter referred to as the said Rules) have been framed under the said Act. Rule 6 and 7 are the relevant rules which lay down the procedure. The said rule 6 and rule 7 are as under:

6. Application to the Magistrate:- (1) Every application of the aggrieved person under section 12 shall be in Form II or as nearly as possible thereto.

(2) An aggrieved person may seek the assistance of the Protection Officer in preparing her application under sub-rule (1) and

forwarding the same to the concerned Magistrate.

(3) In case the aggrieved person is illiterate, the Protection Officer shall read over the application and explain to her the contents thereof.

(4) The affidavit to be filed under sub-section (2) of section 23 shall be filed in : 9 :

Form III.

(5) The applications under section 12 shall be dealt with and the orders enforced in the same manner laid down under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974).

7. Affidavit for obtaining ex-parte orders of Magistrate:- Every affidavit for obtaining ex-parte order under sub-section (2) of section 23 shall be filed in Form III."

9. Form II of the said Rules incorporates a format of the application under sub section 1 of section 12. The format requires that the nature of reliefs sought shall be incorporated in the application. Sub rule 5 of rule 6 provides that an application under section 12 shall be dealt with and the orders passed thereon shall be enforced in the same manner laid down under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code"). The procedure which governs an application under section 125 of the said Code will apply to the proceedings of an application under section 12 of the said Act. The procedure contemplated by Chapter IX of the said Code which deals with applications under section 125 is a summary : 10 :

procedure as indicated by sub-section 2 of section 126 of the said Code. Section 128 provides for enforcement of the order of maintenance. Thus, the orders passed by the learned Magistrate under the said Act are enforceable in the same manner as provided under section 128 of the said Code.

10. While dealing with the procedure, it will be necessary to refer to section 28 of the said Act which reads thus:

28. Procedure:- (1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22, and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973.

(2) Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for

disposal of an application under section 12 or under sub-section (2) of section 23 (2 of 1974)."

11. The reliefs which can be granted on an : 11 :

application under section 12 the said Act can be broadly classified as under:

(i) protection orders under section 18 which are for preventing the respondent from committing an Act of Domestic Violence;

(ii) residence orders under section 19;

(iii) Monetary relief under section 20 which includes maintenance, loss of earnings, medical expenses and loss caused due to destruction, damage or removal of any property from the control of the aggrieved person;

(iv) custody orders under section 21 dealing with temporary custody of any child or children to the aggrieved person or visitation rights to aggrieved person under section 21; and

(v) compensation orders under section 22.

12. Section 17 reads thus:

" 17. Right to reside in a shared household:(1) Notwithstanding anything contained

household:

in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

(2) The aggrieved person shall not be evicted or excluded from the shared household or

any part of it by the respondent save in accordance with the procedure established by law."

13. Sub section (1) of section 17 starts with a non-obstante clause which has over-riding effect over other statues. The sub-section provides that every women in a domestic relationship shall have right to reside in a shared household whether or not she has any right, title or beneficial interest in the same. This is indeed a provision which enlarges the scope of the concept of matrimonial home under the existing laws dealing with matrimonial relationship. This is in the context of the definition of domestic relationship under clause (f) of section 2 which means relationship between two persons who live or have, at any point of time, : 13 :

lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of a marriage. The definition of shared household under section 2(s) of the said Act is very wide. It even includes a household which may belong to the joint family of which the respondent is a member. Section 19 which gives power to the Magistrate to pass residence orders providing for grant of various orders in relation to a shared household for protecting the rights of the aggrieved person to occupy a shared household. The learned Magistrate in a given case can even direct the respondent to remove himself from a shared household.

14. Section 23 of the said Act reads thus:

23. Power to grant interim and ex parte orders:- (1) In any proceedings before him under

this Act, the Magistrate may pass such interim order as he deems just and proper.

(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act

of domestic violence, he may grant an ex-parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20,

section 21 or, as the case may be, section 22 against the respondent."

15. There was some debate before this Court as regards the spheres in which sub section 1 and sub section 2 of section 23 operate. A contention was sought to be raised by the learned counsel appearing for the 2nd respondent that power under sub section 2 is confined to granting interim reliefs under sections 18 to 22 of the said Act and the power under sub-section 1 is a larger power which extends to grant of any interim order as the learned Magistrate deems it just and proper which may not be covered even by any of the sections 18 to 22. On plain reading of section 23, the legal position appears to be different. This Court has already held that when an aggrieved person desires to claim any interim relief under section 23 of the said Act, it is not necessary for the aggrieved person to take out a separate application for interim relief and the only requirement of law is that an affidavit in prescribed Form III of the said rules has to be filed by the aggrieved person. Sub- section 2 provides that when : 15 :

such an affidavit is filed in the prescribed form by the aggrieved person and if the application under section 12(1) of the said Act prima facie discloses that the respondent thereto is committing or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, the learned Magistrate may grant exparte order under sections 18, 19, 20, 21 or as the case may be under section 22 against the respondent. Thus, sub-section 2 of section 23 confers a power on the Magistrate to grant an exparte ad-interim relief. The said exparte ad-interim relief can be granted in terms of reliefs under section 18 to section 22 of the said Act. Sub-section 1 deals with grant of an interim relief or interim order. Thus, the scheme of the section 23 appears to be that under sub-section 2 on the basis of an affidavit, an exparte ad-interim order without prior notice to the respondent can be passed by the learned Magistrate in terms of sections 18, 19, 20, 21 or 22 of the said Act against the respondent. Sub section 1 provides for passing an interim order which is to operate till the final disposal of the main application under sub section 1 of section 12 or till the same is modified earlier. Though a separate application is not necessary to be made for grant of interim relief, principles of natural justice require that before granting interim relief in terms of sub section 1 of : 16 :

section 23, the respondent in the main application will have to be heard. Therefore, before granting interim relief under sub section 1 of section 23, a notice will have to be served to the respondent. It is well settled position of law that an interim relief can be granted only in the aid of final relief which can be granted in the main proceedings. In the case of proceedings under sub section 1 of section 12 of the said Act, the learned Magistrate can pass final orders covered by sections 18, 19, 20, 21 or 22 of the said Act and therefore it is obvious that interim order which can be granted under sub section 1 of section 23 can be only in terms of reliefs provided for in sections 18 to 22 of the said Act. Under sub section 1 of section 23 a relief which is not covered by any of the sections 18 to 22 of the said Act cannot be granted. Thus in short, the power under sub-section 2 of section 23 is of grant of an ex-parte ad-interim relief in terms of sections 18 to 22 of the said Act and the power under sub-section (1) is of grant of interim relief pending final disposal of the main application under section 12(1) of the said Act.

16. It will be necessary to refer to section 29 of the said Act which reads thus:

"29.

29. Appeal:- There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later."

17. On plain reading of the section 29 which provides for an appeal to the Court of Sessions against an order made by the Magistrate which is served on the aggrieved person or the respondent as the case may be. The orders contemplated under the said Act can be broadly divided into three categories. The first category is of the final order passed on application under sub section 1 of section 12. The second category is of the ex-parte ad-interim orders under sub-section 2 of section 23 of the said Act and the third category will be of the interim orders under sub section 1 of section 23 of the said Act.

18. Certain submissions were made on the basis of a decision of Division Bench of this Court in the case of Central Bank of India Vs. Kurian Babu (2004 (4) Maharashtra Law Journal 1006). In the said decision, the Division Bench of this Court has dealt with provision of appeals under section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the said Act of 1993). : 18 :

After considering the decision of the Apex Court in the case of Central Bank of India Vs. Gokal Chand (AIR 1967 SC 799) as well as in the case of Shankarlal Aggarwal Vs. Shankarlal Poddar (AIR 1965 SC 507), the Division Bench held that though section 20 of the said Act provides for an appeal against every order made by the tribunal constituted under the said Act of 1993, the orders which are purely procedural which do not affect the substantive rights of the parties are not appelable under section 20(1) of the said Act of 1993.

19. It will be necessary to consider the decision of the Apex Court in the case of Shankarlal Aggarwal (supra). The Apex Court was dealing with a provision relating to an appeal under section 202 of the Companies Act, 1913 which provided for an appeal from any order or decision given in the matter of winding up of the company by the Court. The Apex Court held that by virtue of section 202 of the said Act of 1913, an appeal will not lie against purely procedural orders which do not affect the rights or liabilities of the parties. In the case of Central Bank of India (supra), the Apex Court was dealing with section 38 of the Delhi Rent Control Act, 1958 which provided for an appeal against every order passed by the Controller. The Apex Court relied upon the decision in the case of Shankarlal Aggarwala (supra) and held that though the phraseology : 19 :

used in the section 38 was very wide, the said section excludes merely procedural orders or orders which do not affect the rights or liabilities of the parties.

20. Now turning to section 29 of the said Act, it is true that an appeal will lie against every final order passed by a learned Magistrate. The question which arises is whether an appeal will lie against an ex-parte ad-interim order passed under sub-section 2 and against an interim order under sub section 2 of section 23. The learned counsel appearing for the 2nd respondent relied upon the decision of the Apex Court in the case of Amarnath and others Vs. State of Haryana and others (AIR 1977 Supreme Court 2185). He submitted that every interim order cannot be treated as an interlocutory order. He submitted that as observed by the Apex Court there are orders which are matters of moment and which affect or adjudicate the rights of the parties or a particular aspect of the trial. He pointed out that the Apex Court has held that such orders cannot be interlocutory orders. On plain reading of section 29 of the said Act, the orders which are made under sub- section 1 and sub section 2 of section 23 will have to be held to be an orders made by Magistrate under the provisions of the said Act. The power under section 23 is of grant of ex-parte ad-interim and interim relief in terms of sections 18 to 22 of the said Act. Therefore, : 20 :

the orders passed both under sub section 1 and sub section 2 will be appelable. However, the scope of interference in appeal against such ad-interim or interim orders will be naturally limited. The orders contemplated by section 23 are discretionary orders. The Apex Court had an occasion to deal with the power of the Appellate Court and scope of appeals against interim orders which are discretionary in nature. In the case of Ramdev Food Products Pvt Ltd Vs. Arvindbhai Rambhai Patel & others [(2006) 8 Supreme Court Cases 726] the Apex Court dealt with an appeal provided under rule 1(r) of Order XLIII of the Code of Civil Procedure, 1908 against an interim order of injunction. Paragraph Nos.125 and 126 of the said judgment read thus:

"125. We are not oblivious that normally the appellate Court would be slow to interfere with the discretionary jurisdiction of the trial Court.

126. The grant of an interlocutory injunction is in exercise of discretionary power and hence,

the appellate courts will usually not interfere with it. However, the appellate courts will substitute their discretion if they find that : 21 :

discretion has been exercised arbitrarily, capriciously, perversely, or where the court has

ignored the settled principles of law regulating

the grant or refusal of interlocutory injunctions. This principle has been stated by this Court time and time again." (Emphasis added)

21. In view of what is held by the Apex Court, while the Court of Sessions deals with an appeal from an order made under section 23, the Court of Sessions will be governed by the aforesaid constraints. Thus, the scope of appeal against an order under section 23 will be limited. While dealing with an appeal against an ex-parte ad-interim order, the Sessions Court will be very slow in interfering with such orders unless the orders are perverse or patently illegal. However, the scope of an appeal against a final order on application under section 12(1) of the said Act will not be governed by the aforesaid constraints.

22. As held by the Apex Court in the case of Central Bank of India (supra) and Shankarlal Aggarwal (supra), an appeal under section 29 will not be maintainable against the purely procedural orders such as orders on application for amendment of pleadings, orders refusing : 22 :

or granting adjournments, order issuing witness summons or orders passed for executing the orders passed under the said Act etc.

23. My attention was also invited to section 26 of the said Act. If relief under the provision of sections 18 to 22 of the said Act is granted by a Civil Court or Family Court, an appeal will not lie under section 29 in as much as an appeal under section 29 will lie only against an order of the learned Magistrate.

24. Now turning to the facts of the case in hand, it must be stated that it is an admitted position that the said flat has been acquired in the joint names of the petitioner and the 2nd respondent. It is true that in the reply filed by the petitioner he has stated that he has never denied residential accommodation of the said flat to the 2nd respondent. However, while considering the prayer under section 23 of the said Act, the learned Magistrate is required to consider the averments made in the main application under sub section 1 of section 12. The learned Additional Sessions Judge has adverted to the averments made by the 2nd respondent and has passed a discretionary order granting protection to the 2nd respondent in respect of said flat which prima facie appears to be a shared accommodation within the meaning of section 17 of the said Act. In so far as suggestion : 23 :

given by the counsel appearing for the petitioner is concerned, the parties cannot be compelled to accept the said suggestion. The order passed by the learned Additional Sessions Judge is an interim order which will remain in force till final disposal of application under sub section (1) of section 12 of the said Act. In view of the admitted position that the flat is acquired in the Joint names of the petitioner and 2nd respondent, no case for interference is made out.

25. Thus, the conclusions which can be summarised are as under:

(i) An appeal will lie under section 29 of the said Act against the final order passed by the learned Magistrate under sub-section 1 of section 12 of the said Act;

(ii) Under sub-section 2 of section 23 of the said Act, the learned Magistrate is empowered to

grant an ex-parte ad-interim relief in terms of sections 18 to 22 of the said Act. The power under sub-section 1 is of granting interim relief in terms of sections 18 to 22 of the said

Act. Before granting an interim relief under sub-section 1, an opportunity of being heard is required to be granted to the respondent.

(iii) An appeal will also lie against orders passed under sub section 1 and sub section 2 of the section 23 of the said Act which are passed by the learned Magistrate. However, while dealing with an appeal against the order passed under section 23 of the said Act, the Appellate Court will usually not interfere with the exercise of discretion by the learned Magistrate. The appellate Court will interfere only if it is found that the discretion has been

exercised arbitrarily, capriciously, perversely or if it is found that the Court has ignored settled principles of law regulating grant or refusal of interim relief.

(iv) An appeal under section 29 will not be maintainable against purely procedural orders which do not decide or determine the rights and liabilities of the parties.

26. Before parting with this judgment, appreciation has to be recorded about the able assistance given by the learned counsel appearing for the petitioner and 2nd respondent.

27. Hence, I pass the following order:

(i) The petition is rejected with no orders as to costs.

(ii) The learned Magistrate will finally decide the application under sub section

1 of section 12 of the said Act within a

period of three months from the date of production of authenticated copy of operative part of this order.

2. Heard learned counsel for the appellant. None has appeared for the respondent although she has been served notice. We had earlier requested Mr. Jayant Bhushan, learned Senior counsel to assist us as Amicus Curiae in 2

the case, and we record our appreciation of Mr. Bhushan who was of considerable assistance to us.

3. These appeals have been filed against the judgment of the Madras High Court dated 12.10.2009.

4. The appellant herein has alleged that he was married according to the Hindu Customary Rites with one Lakshmi on 25.6.1980. Out of the wedlock with Lakshmi a male child was born, who is now studying in an Engineering college at Ooty. The petitioner is working as a Secondary Teacher in Thevanga Higher Secondary School, Coimbatore.

5. It appears that the respondent-D. Patchaiammal filed a petition under Section 125 Cr.P.C. in the year 2001 before the Family Court at Coimbatore in which she alleged that she was married to the appellant herein on 14.9.1986 and since then the appellant herein and she lived together in her father's house for two or three years. It is alleged in the petition that after two or three years the appellant herein left the house of the respondent's father and started living in his native place, but would visit the respondent occasionally.

6. It is alleged that the appellant herein (respondent in the petition under Section 125 Cr.P.C.) deserted the respondent herein (petitioner in the proceeding under Section 125 Cr.P.C.) two or three years after marrying her in 1986. In her petition under Section 125 Cr.P.C. she alleged that she did not have any kind of livelihood and she is unable to maintain herself whereas the respondent (appellant herein) is a Secondary Grade Teacher drawing a salary of Rs.10000/- per month. Hence it was prayed that the respondent (appellant herein) be directed to pay Rs.500/- per month as maintenance to the petitioner.

7. In both her petition under Section 125 Cr.P.C. as well as in her deposition in the case the respondent has alleged that she was married to the appellant herein on 14.9.1986, and that he left her after two or three years of living together with her in her father's house.

8. Thus it is the own case of the respondent herein that the appellant left her in 1988 or 1989 (i.e. two or three years after the alleged marriage in 1986). Why then was the petition under Section 125 Cr.P.C. filed in the year 2001, i.e. after a delay of about twelve years, shall have to be satisfactorily explained by the respondent. This fact also creates some doubt about the case of the respondent herein.

9. In his counter affidavit filed by the appellant herein before the Family Court, Coimbatore, it was alleged that the respondent (appellant herein) was married to one Lakshmi on 25.6.1980 as per the Hindu Marriage rites and customs and he had a male child, who is studying in C.S.I. Engineering college at Ooty. To prove his marriage with Lakshmi the appellant produced the ration card, voter's identity card of his wife, transfer certificate of his son, discharge certificate of his wife Lakshmi from hospital, photographs of the wedding, etc.

10. The learned Family Court Judge has held by his judgment dated 5.3.2004 that the appellant was married to the respondent and not to Lakshmi. These findings have been upheld by the High Court in the impugned judgment.

11. In our opinion, since Lakshmi was not made a party to the proceedings before the Family Court Judge or before the High Court and no notice was issued to her hence any declaration about her marital status vis-`- vis the appellant is wholly null and void as it will be violative of the rules of natural justice. Without giving a hearing to Lakshmi no such declaration could have validly be given by the Courts below that she had not married the appellant herein since such as a finding would seriously affect her rights. 5

And if no such declaration could have been given obviously no declaration could validly have been given that the appellant was validly married to the respondent, because if Lakshmi was the wife of the appellant then without divorcing her the appellant could not have validly married the respondent.

12. It may be noted that Section 125 Cr.P.C. provides for giving maintenance to the wife and some other relatives. The word `wife' has been defined in Explanation (b) to Section 125(1) of the Cr.P.C. as follows : &quot;Wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.&quot;

13. In Vimala (K) vs. Veeraswamy (K) [(1991) 2 SCC 375], a three- Judge Bench of this Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word `wife' the Court held: &quot;..the object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term `wife' in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her 6

husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term `wife' consistent with the objective. However, under the law a second wife whose marriage is void on account of the survival of the first marriage is not a legally wedded wife, and is, therefore, not entitled to maintenance under this provision.&quot;

14. In a subsequent decision of this Court in Savitaben Somabhat Bhatiya vs. State of Gujarat and others, AIR 2005 SC 1809, this Court held that however desirable it may be to take note of the plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of `wife'. The Bench held that this inadequacy in law can be amended only by the Legislature.

15. Since we have held that the Courts below erred in law in holding that Lakshmi was not married to the appellant (since notice was not issued to her and she was not heard), it cannot be said at this stage that the respondent herein is the wife of the appellant. A divorced wife is treated as a wife for the purpose of Section 125 Cr.P.C. but if a person has not even been married obviously that person could not be divorced. Hence the respondent herein cannot claim to be the wife of the appellant herein, unless it is established that the appellant was not married to Lakshmi.

16. However, the question has also be to be examined from the point of view of The Protection of Women from Domestic Violence Act, 2005. Section 2(a) of the Act states :

&quot;2(a) &quot;aggrieved person&quot; means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent&quot;;

Section 2(f) states :

2(f) &quot;domestic relationship&quot; means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family&quot;; Section 2(s) states :

2(s) &quot;shared household&quot; means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. Section 3(a) states that an act will constitute domestic violence in case it-

3(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse;&quot; or

(emphasis supplied)

17. The expression &quot;economic abuse&quot; has been defined to include : &quot;(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance&quot;.

(emphasis supplied)

18. An aggrieved person under the Act can approach the Magistrate under Section 12 for the relief mentioned in Section 12(2). Under Section 20(1)(d) the Magistrate can grant maintenance while disposing of the application under Section 12(1).

19. Section 26(1) provides that the relief mentioned in Section 20 may also be sought in any legal proceeding, before a civil court, family court or a criminal court.

20. Having noted the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, we may point out that the expression `domestic relationship' includes not only the relationship of marriage but also a relationship `in the nature of marriage'. The question, therefore, arises as to what is the meaning of the expression `a relationship in the nature of marriage'. Unfortunately this expression has not been defined in the Act. Since there is no direct decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an authoritative decision is required.

21. In our opinion Parliament by the aforesaid Act has drawn a distinction between the relationship of marriage and a relationship in the nature of marriage, and has provided that in either case the person who enters into either relationship is entitled to the benefit of the Act. 1

22. It seems to us that in the aforesaid Act of 2005 Parliament has taken notice of a new social phenomenon which has emerged in our country known as live-in relationship. This new relationship is still rare in our country, and is sometimes found in big urban cities in India, but it is very common in North America and Europe. It has been commented upon by this Court in S. Khushboo vs. Kanniammal &amp; Anr. (2010) 5 SCC 600 (vide para 31).

23. When a wife is deserted, in most countries the law provides for maintenance to her by her husband, which is called alimony. However, earlier there was no law providing for maintenance to a woman who was having a live-in relationship with a man without being married to him and was then deserted by him.

24. In USA the expression `palimony' was coined which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him (see `palimony' on Google). The first decision on palimony was the well known decision of the California Superior Court in Marvin vs. Marvin (1976) 18 C3d660. This case related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him, and was then deserted 1

by him and she claimed palimony. Subsequently in many decisions of the Courts in USA, the concept of palimony has been considered and developed. The US Supreme Court has not given any decision on whether there is a legal right to palimony, but there are several decisions of the Courts in various States in USA. These Courts in USA have taken divergent views, some granting palimony, some denying it altogether, and some granting it on certain conditions. Hence in USA the law is still in a state of evolution on the right to palimony.

25. Although there is no statutory basis for grant of palimony in USA, the Courts there which have granted it have granted it on a contractual basis. Some Courts in USA have held that there must be a written or oral agreement between the man and woman that if they separate the man will give palimony to the woman, while other Courts have held that if a man and woman have lived together for a substantially long period without getting married there would be deemed to be an implied or constructive contract that palimony will be given on their separation.

26. In Taylor vs. Fields (1986) 224 Cal. Rpr. 186 the facts were that the plaintiff Taylor had a relationship with a married man Leo. After Leo died Taylor sued his widow alleging breach of an implied agreement to take care 1

of Taylor financially and she claimed maintenance from the estate of Leo. The Court of Appeals in California held that the relationship alleged by Taylor was nothing more than that of a married man and his mistress. It was held that the alleged contract rested on meretricious consideration and hence was invalid and unenforceable. The Court of Appeals relied on the fact that Taylor did not live together with Leo but only occasionally spent weekends with him. There was no sign of a stable and significant cohabitation between the two.

27. However, the New Jersey Supreme Court in Devaney vs. L' Esperance 195 N.J., 247 (2008) held that cohabitation is not necessary to claim palimony, rather &quot;it is the promise to support, expressed or implied, coupled with a marital type relationship, that are indispensable elements to support a valid claim for palimony&quot;. A law has now been passed in 2010 by the State legislature of New Jersey that there must be a written agreement between the parties to claim palimony.

28. Thus, there are widely divergent views of the Courts in U.S.A. regarding the right to palimony. Some States like Georgia and Tennessee expressly refuse to recognize palimony agreements. 1

29. Written palimony contracts are rare, but some US Courts have found implied contracts when a woman has given up her career, has managed the household, and assisted a man in his business for a lengthy period of time. Even when there is no explicit written or oral contract some US Courts have held that the action of the parties make it appear that a constructive or implied contract for grant of palimony existed.

30. However, a meretricious contract exclusively for sexual service is held in all US Courts as invalid and unenforceable.

31. In the case before us we are not called upon to decide whether in our country there can be a valid claim for palimony on the basis of a contract, express or implied, written or oral, since no such case was set up by the respondent in her petition under Section 125 Cr.P.C.

32. Some countries in the world recognize common law marriages. A common law marriage, sometimes called de facto marriage, or informal marriage is recognized in some countries as a marriage though no legally recognized marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry (see details on Google).

33. In our opinion a `relationship in the nature of marriage' is akin to a common law marriage. Common law marriages require that although not being formally married :-

(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

(see `Common Law Marriage' in Wikipedia on Google) In our opinion a `relationship in the nature of marriage' under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a `shared household' as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a `domestic relationship'.

34. In our opinion not all live in relationships will amount to a relationship in the nature of marriag8e to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a `keep' whom he 1

maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage'

35. No doubt the view we are taking would exclude many women who have had a live in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or amend the law. Parliament has used the expression `relationship in the nature of marriage' and not `live in relationship'. The Court in the grab of interpretation cannot change the language of the statute.

36. In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoy's novel `Anna Karenina', Gustave Flaubert's novel `Madame Bovary' and the novels of the great Bengali writer Sharat Chandra Chattopadhyaya.

37. However, Indian society is changing, and this change has been reflected and recognized by Parliament by enacting The Protection of Women from Domestic Violence Act, 2005.

38. Coming back to the facts of the present case, we are of the opinion that the High Court and the learned Family Court Judge erred in law in 1

holding that the appellant was not married to Lakshmi without even issuing notice to Lakshmi. Hence this finding has to be set aside and the matter remanded to the Family Court which may issue notice to Lakshmi and after hearing her give a fresh finding in accordance with law. The question whether the appellant was married to the respondent or not can, of course, be decided only after the aforesaid finding.

39. There is also no finding in the judgment of the learned Family Court Judge on the question whether the appellant and respondent had lived together for a reasonably long period of time in a relationship which was in the nature of marriage. In our opinion such findings were essential to decide this case. Hence we set aside the impugned judgment of the High Court and Family Court Judge, Coimbatore and remand the matter to the Family Court Judge to decide the matter afresh in accordance with law and in the light of the observations made above. Appeals allowed.

Justice Shiv Narayan Dhingra1. Whether reporters of local papers may be allowed to see the judgment? Yes.2. To be referred to the reporter or not? Yes.3. Whether judgment should be reported in Digest? Yes. JUDGMENT

The present petition has been filed for quashing of FIR No. 426/2007 PS IGI Airport registered against the petitioner under Section 354/506 IPC.

2. The complainant (respondent no.2 herein) got this FIR registered stating therein that she was in 'live-in relationship' with the petitioner for more than 05 years and was involved with him physically, emotionally and mentally. The petitioner had promised to marry her as soon as possible. Few days back (from date of registration of FIR) she learnt that petitioner was getting married to someone else, so she came to IGI airport to remind him of his promises and refresh memories (as he was leaving India). Crl.M.C.No. 299/2009 Alok Kumar v. State & Anr. Page 1 of 8 The petitioner told her to solve the matter and took her to visitors' lounge where she started arguing with her. In the meantime he went to washroom and gave his passport to the complainant to keep in safe custody. While coming from toilet he was bit angry and pushed her at visitors' lounge of IGI airport outside the toilet, started abusing her and saying that he would kill her. She (complainant) was trying to make him calm but he suddenly became violent and started hitting her. He pulled her with her breast and punched her at her head, face and neck. Many people came to her rescue but he punched her on her breast. He got a cab and went out of scene but while running he forgot his passport with her. The time of occurrence of incident is shown as 1.00 pm on 18th October, 2007 and the time of registration of FIR is shown as 4.00 pm.

3. The complainant had also lodged another FIR against the petitioner under Section 376 IPC wherein she made following allegations:

6. In the month of September, 2004 he invited me to visit him in London. During that stay in London in his house 16, Narine Grove, Dulwich Village, London SP 24, 9PU we

became intimate with each other and also had physical

relations, but only after he promised and assured that he will marry me after his divorce has taken place with his first wife, from whom he had a son.

7. In this way we kept on meeting in Delhi in London and had physical relations and every time he kept on promising and assured me that we will get married as soon as his divorce will be through.

x x x x x

15. I got suspicious and went to IGI International Airport at around 11.00-11.30 am on 18th October and found Mr. Alok Kumar holding hands of a lady, whose name I came to know later as Ms. Amrita Das R/o Sector 41, Noida and Mr. Alok Kumar was having his arm around her waist.

Crl.M.C.No. 299/2009 Alok Kumar v. State & Anr. Page 2 of 8

16. On my confronting him, he sent away that lady and

reacted violently with me and also misbehaved and

physically assaulted me, all the facts of the incident have been reported by me in my complaint in Police Station IGI Airport on the very same day, on the basis of my complaint a case under Section 354/506 IPC was registered against Mr. Alok Kumar (a copy of the FIR is enclosed herewith for ready reference).

4. The petitioner's contention is that on 18th October, 2007 he had come to IGI Airport as he was a solicitor in London and was returning back to London. He had not denied about live-in relationship with the complainant but had stated that his parents did not agree to this marriage because of certain reasons. He was to catch flight of Virgin Atlantic Airlines to London and he reached airport around 12.05 pm with his fiancée and was about to enter departure building when complainant called him from behind and asked him to talk for about five minutes. He agreed to talk and while talking she snatched his passport from his shirt pocket and told that she would not return the passport unless he accompanied her and solemnized marriage with her in a temple forthwith. He told her that he had to report at check-in counter latest by 12.35 pm. The complainant after taking her passport went to ladies toilet and did not come out till 12.45 pm, he missed his flight. After coming out from toilet she told him that she had torn away his passport and flushed it. Complainant also started screaming and shouting at him that she would not allow him to marry another woman. Many people were looking at them. She left the place in a scooter and told him to come to her sister's house. He went to her sister's house kept waiting there but she did not come there. Thereafter he learnt about lodging of this FIR.

5. It is submitted by the petitioner that the allegations made by the complainant about molesting her were preposterous and the FIR was lodged Crl.M.C.No. 299/2009 Alok Kumar v. State & Anr. Page 3 of 8 with mala fide intention to prevent the petitioner from going to London where petitioner was practicing. The complainant subsequently lodged another FIR under Section 376 IPC against the petitioner with the same motive.

6. From the allegations made by the complainant, it is apparent that when the complainant started 'live-in relationship' with the petitioner, the petitioner had not even divorced his previous wife though it seems was living separate from her. The complainant was having a child while the petitioner was also having a child. 'Live-in relationship' is a walk-in and walk-out relationship. There are no strings attached to this relationship, neither this relationship creates any legal bond between the parties. It is a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without consent of the other party and one party can walk out at will at any time. Those, who do not want to enter into this kind of relationship of walk-in and walk-out, they enter into a relationship of marriage, where the bond between the parties has legal implications and obligations and cannot be broken by either party at will. Thus, people who chose to have 'live-in relationship' cannot complain of infidelity or immorality as live-in relationships are also known to have been between married man and unmarried woman or between a married woman and an unmarried man.

7. It is admitted case of the complainant that she herself came to IGI International Airport when she learnt that the petitioner was going back to London and was about to marry someone else and it is complainant's own case that she could not tolerate this and wanted to remind the petitioner of good old days and promises. She subsequently lodged an FIR under Section 376 IPC against the petitioner. These facts make it abundantly clear that sole Crl.M.C.No. 299/2009 Alok Kumar v. State & Anr. Page 4 of 8 design of the complaint was to prevent the petitioner from leaving India because petitioner had decided to walk out of the live-in relationship between the parties. This is clear from the sequence of events stated by the complainant in her compliant. She in her complaint under Section 354/506 IPC had not stated as to at what time she reached the airport but in her subsequent FIR she had given time of her reaching at the airport at 11.30 a.m. Obviously, she had reached airport well in advance knowing the timing of the flight. It seems the quarrel had taken place when the petitioner was to enter the departure building as there is no visitors' lounge at IGI Airport (International) and the visitors have to stay outside the departure building where taxis and cars drop the passengers who have to catch flight. There are several gates at the departure building and each gate is manned by security persons, no one can enter the departure building without an air-ticket and a passport or without a security pass. The police post is at one corner of the departure building itself and police station is downstairs near arrival building. The alleged incident reported by complainant had taken place around 12.30 p.m., the FIR was lodged at 4.00 pm when the police post is at the corner of the departure building. The four and half hours difference in lodging of FIR shows that the FIR was lodged after a considerable long time with a design to deposit passport of the petitioner with the police so late that the passport of the petitioner was not returned to the petitioner. This is clear from the subsequent events as the petitioner was not returned his passport by police and his LoC was opened by the police. This case reflects that the police was acting under some influence. Even thereafter when petitioner asked for return of passport to the police, the police refused to return it on the ground that it was part of the case property.

Crl.M.C.No. 299/2009 Alok Kumar v. State & Anr. Page 5 of 8

8. It is settled law that the Court should refrain from quashing FIR on the ground that allegations made in FIR were false. However, when FIR is lodged with mala fide motives to wreck vengeance, the Courts have interfered as an exceptional matter and quashed the FIRs. In M/s Eicher Tractors Limited & Ors. v. Harihar Singh & Anr. 2009(1) JCC 260, State of Karnataka v. M. Devendrappa 2002 (1) JCC 214, State of Haryana v. Bhajan Lal 1992 SCC (Crl.) 426 and Madhavrao J. Scindhia v. Sambhajirao C. Angre 1988 SCC (Crl.) 234, Supreme Court held that where allegations made in an FIR or complaint were so absurd and inherently improbable on the basis of which no prudent person could ever reach a just conclusion, this was sufficient ground for quashing the FIR. The Apex Court also held that where criminal proceeding is manifestly attended with mala fide and where proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and person grudge, the FIR can be quashed.

9. In the present case, motive of the complainant is writ large in her two complaints. She had entered into live-in relationship knowing fully well that the petitioner was not even divorced at that time. She being an educated lady, already once married, was not a naïve as not to know the realty of live-in relationship. It cannot be thought that she was not aware that live-in relationship was not a marriage but it was a relationship of convenience where two parties decide to enjoy company of each other at will and may leave each other at will. However, despite entering into 'live-in relationship' with the petitioner, she could not tolerate that petitioner should marry someone else and when the petitioner was about to leave India with his Crl.M.C.No. 299/2009 Alok Kumar v. State & Anr. Page 6 of 8 fiancée and was at the airport, she went to the airport with the sole motive, which is clear from the sequence of events, to prevent petitioner from flying out from India and to teach him a lesson. She had been lived with the petitioner in London. She knew that the petitioner was working in London. She enacted the events in such a manner that the petitioner could not get hold of his passport for considerable long time and could not leave India for that period. She made allegations of rape against the petitioner.

10. This Court while granting anticipatory bail to the petitioner in the rape case lodged by the complainant observed as under:

7. The facts of the case as narrated in two FIRs show that there was admittedly a live-in relationship between the Petitioner and the complainant for more than five years. The petitioner found that he could not go ahead with the marriage although at one point of time the parties had proposed to marry each other. The circumstances narrated preclude an automatic inference on absence of that consent of that complainant. Such conclusion would have to be preceded by a careful examination of events that transpired during the five years when the live-in relationship subsisted and during which according to the complainant she underwent an

abortion as well. Prima facie it appears to this Court, on the basis of existing averments in the FIR that it would be unsafe to infer an absence of consent of the complainant; which is an essential ingredient of the offence of rape. The Court is also unable to discern parity of the facts in Yedla Srinivasa Rao v. State of Andhra Pradesh and the instant case. There the prosecutrix was between 15 years and 17 years living in a village and right from the beginning she refused to

participate in the act but the accused kept on persisting and persuading her. The fact that the police took four months to register the second FIR is also a pointer to the difficulty in early inferring the offence of rape in these circumstances."

11. I consider that the FIR No. 426/2007 PS IGI Airport was got registered against the petitioner out of malice in order to wreck vengeance on the petitioner because petitioner refused to continue live-in relationship with Crl.M.C.No. 299/2009 Alok Kumar v. State & Anr. Page 7 of 8 the complainant, after due deliberations. The incident is of 12.30 pm (around) FIR's registration time is 4.00 pm, MLC of complainant was done at 7.15 pm showing no external injuries on her body. The allegations that accused petitioner, despite his fiancée being there handed over his passport to her for safe custody are preposterous. It is not her case that he was wearing clothes with no pockets. There is no reason a man would hand over his passport to a woman who had come to airport only to quarrel with him.

12. Keeping in view the above circumstances, I consider that it is a fit case where FIR should be quashed to prevent the misuse of criminal justice system for personal vengeance of a partner of 'live-in relationship'. The petition is allowed. FIR No No. 426/2007 PS IGI Airport is hereby quashed. August 09, 2010 SHIV NARAYAN DHINGRA, J. vn

Presumption in favour of valid marriage, law regarding- Law leans in favour of legitimacy-Proof by eye-witness evidence after half a century not permissible.

HEADNOTE:

Dismissing the special leave petition, the Court ^

HELD: If man and woman who live as husband and wife in society are compelled to prove, after half-a-century of wedlock by eye-witness evidence that they were validly married fifty years earlier, few will succeed. ` A strong presumption arises in favour of wed-lock where the partners have lived together for a long spell as husband and wife. Although the presumption IS rebuttable, a heavy burden lies on him who seeks to deprive the relationship of its legal origin. Law leans in favour of legitimacy and frowns upon bastardy. [1 F-H]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Special Leave Petition (Civil) Nos. 1731 and 927 of 1978. From the Judgment and order dated 3-11-76 of the Allahabad High Court (Lucknow Bench) in W.P. 116 of 1971 and from the Judgment and order dated 5-8-77 of the Allahabad High Court (Lucknow Bench) in Revision Application No. 29/77 respectively.

R. K. Garg, Madan Mohan and V. J. Francis for the Petitioner.

The order of the Court was delivered by KRISHNA IYER, J.-For around 50 years, a man and a woman, as the facts in this case unfold, lived as husband and wife. An adventurist challenge to the factum of marriage between the two, by the petitioner in this special leave petition, has been negatived by the High Court. A strong presumption arises in favour of wed-lock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy. In this view, the contention of Shri Garg, for the petitioner, that long after the alleged marriage, evidence has not been produced to sustain its ceremonial process by examining the priest or other witnesses, deserves no consideration. If man and woman who live as husband and wife in society are compelled to prove, half a century later, by eye-witness evidence that they were validly married, few will succeed. The contention deserves to be negatived and we do so without hesitation. The special leave petitions are dismissed.